i^uprrmr  Court  of  %  Httitrft  Stairs 

OCTOBER  TERM,  1919 


No.  29  Original 


STATE  OF  RHODE  ISLAND,  Complainant 

— vs— 

A.  MITCHELL  PALMER,  ATTORNEY  GENERAL 
AND  DANIEL  C.  ROPER,  COMMISSIONER 
OF  INTERNAL  REVENUE,  Defendants 


Brief  of  Complainant  on  Motion  to  Dismiss 


STATE  OF  RHODE  ISLAND 

HERBERT  A.  RICE 

Attorney  General 

A.  A.  CAPOTOSTO 

Assistant  Atty.  Genl. 


providence  : 
1920 


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i^upmue  Court  of  tt|r  Unttrii  States 

OCTOBER  TERM,  1919 


No.  29  Original 


STATE  OF  RHODE  ISLAND,  Complainant 


— vs — 

A.  MITCHELL  PALMER,  ATTORNEY  GENERAL 
AND  DANIEL  C.  ROPER,  COMMISSIONER 
OF  INTERNAL  REVENUE,  Defendants 


Brief  of  Complainant  on  Motion  to  Dismiss 


STATE  OF  RHODE  ISLAND 
HERBERT  A.  RICE 

Attorney  General 
A.  A.  CAPOTOSTO 

Assistant  A  tty.  Genl. 


providence  : 
1920 


Digitized  by  the  Internet  Archive 
in  2018  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/octoberterm1919n00unit 


INDEX 


I.  Allegations  of  Bill . 

II.  Motion  to  Dismiss . . 

III.  Original  Jurisdiction  of  Supreme  Court 

IV.  Propriety  of  State  Action . 

Y.  The  Issue . 

VI.  Established  Principles  . 

(A)  All  Sovereignty  Besides  in  the 

People  . 

(B)  The  Federal  Government  Limited 

to  Prevent  Encroachments . 

( C )  The  Federal  and  State  Govern¬ 

ments  are  Independent  Sover¬ 
eignties,  have  Distinct  and  Sepa¬ 
rate  Jurisdictions  and  Move  in 
Entirely  Different  Spheres . 

(D)  The  Police  Power  Exclusively  in 

the  States  . 

(E)  No  Police  Power  in  Federal  Gov¬ 

ernment  . . . 

VII.  Article  Y  Should  be  Construed  as  Con¬ 
sistent  with  These  Principles  .... 

VIII.  The  So-called  Eighteenth  Amendment  is 

Not  an  Amendment  Within  the 
Purview  of  Article  Y . . 

(A)  Selection  of  the  Word  Amendment 

by  Mr.  Madison . 

(B)  The  Derivative  Meaning . 


IV 


Page 

(C)  The  Meaning  at  Common  Law  ....  74 

(D)  Mr.  Madison's  Interpretation .  86 

(El  Contemporaneous  Interpretation..  88 

(F)  Interpretation  from  Context .  92 

(a)  “This  Constitution”  .  93 

(b)  “Deem  it  Xeeessary” .  97 

IX.  Prior  Amendments  .  102 

(A)  First  Ten  Amendments .  102 

(Bi  Eleventh  Amendment  .  103 

(C)  Twelfth  Amendment  .  105 

(D)  Thirteenth  Amendment .  106 

(E)  Fourteenth  .Amendment  .  109 

(F)  Fifteenth  Amendment .  114 

(G)  Sixteenth  Amendment .  117 

(H)  Seventeenth  Amendment  .  117 

X.  The  Amending  Function  is  Purely  Fed¬ 
eral  .  118 

XI.  The  Proposal  of  the  So-called  Eight¬ 

eenth  Amendment  Was  Unconsti¬ 
tutional  .  124 

XII.  The  Preservation  of  the  States .  130 


CASES  CITED 


4 


Page 

Ableman  Y.  Booth,  21  How.  506  (1858) . 11,  49,  80,  134 

Barbier  v.  Connolly,  113  U.  S.  27  (1885) .  115 

Barron  v.  Baltimore ,  7  Pet.  243  (1833), 

36,  42,  64,  65,  103,  119 

Bartemeyer  v.  Iowa,  18  Wall.  129  (1874) .  57,  115 

Beer  Co.  v.  Massachusetts,  97  U.  S.  25  (1878) .  57 

Bowman  v.  C.  dc  N.  By.  Co.,  125  U.  S.  465  (1888)  .  .  58 

Brown  v.  New  Jersey,  175  U.  S.  172  (1899) .  103 

Capital  City  Dairy  Co.  v.  Ohio ,  183  U.  S.  238 

(1901)  .  103 

Chisholm  v.  Georgia,  2  Dali.  419  (1793) .  48,  104,  131 

Claflin  v.  Houseman,  93  U.  S.  130  (1876) .  50,  51 

Cohens  v.  Virginia,  6  Wheat.  264  (1821)  .  10,  104,  131,  133 

Collector  v.  Day,  11  Wall.  113  (1870) .  50,  135 

Cor  field  v.  Coryell,  4  Wash.  C.  C.  380  (1823) .  110,  114 

Crane  v.  Campbell,  245  U.  S.  304  (1917) .  57 

Crowley  v.  Christensen,  137  U.  S.  86  (1890) .  57 

Davis  v.  Texas,  139  U.  S.  651  (1890) .  103 

Dobbins  v.  Los  Angeles,  195  U.  S.  223  (1904) .  20 

Dodge  y.  Woolsey,  19  How.  348  (1856) .  123 

Ex  parte  Young,  209  U.  S.  123  (1908) .  9 

Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107  (1911)  ....  87 

Florida  Y.  Georgia,  17  How.  478  (1854) .  104 

Georgia  Y.  Tenn.  Copper  Co.,  206  U.  S.  230  (1907) .  21 

Gibbons  y.  Ogden,  9  Wheat.  1  (1824) .  34,  60,  67 

Gordon  y.  United  States,  117  U.  S.  697  (1864)  ....  12 

Hamilton  Y.  Ky.  D.  d  W.  Co.,  40  Sup.  Ct.  Rep.  106 

(1919)  .  61 


v 


VI 


Page 

Hammer  v.  Dagenhart,  247  U.  S.  251  (1918), 

9,  17,  18,  20,  137 

In  re  Debs ,  158  U.  S.  564  (1895)  .  16,  22 

In  re  Heff ,  197  U.  S.  488  (1905)  .  14,  59,  61 

In  re  Opinion  of  Justices,  107  Atl.  Rep.  673  (1919)  121,  122 

In  re  Ralirer ,  140  U.  S.  545  (1891) .  116 

Inter.  Hews  Ser.  v.  Asso.  Press,  248  U.  S.  236 

(1918)  .  20 

Keller  v.  United  States,  213  U.  S.  138  (1908) .  62,  138 

Kidd  v.  Pearson,  128  U.  S.  1  (1888) .  57,  58 

Leisy  v.  Hardin ,  135  U.  S.  100  (1889) .  55,  58,  59 

License  Tax  Cases,  5  Wall.  462  (1866) .  57 

Marburg  y.  Madison,  1  C ranch.  137  (1803) .  94,  96 

Martin  v.  Hunter's  Lessee,  1  Wheat.  304  (1816) . .  47 

McCulloch  v.  Maryland,  4  Wheat.  316  (1819), 

9,  38,  48,  49,  98,  118,  135,  136 

Miller  v.  Texas,  153  U.  S.  535  (1893) .  103 

Mugler  v.  Kansas,  123  U.  S.  623  (1887) .  57 

M.,  K.  d  T.  Ry.  Co.  v.  Haber,  169  U.  S.  613  (1898)  61 

O’Neil  v.  Vermont,  144  U.  S.  323  (1891) .  103 

Passenger  Cases,  7  Hoa\t.  283  (1849) .  72,  73,  87,  137 

Philadelphia  Co.  v.  Stimson,  223  U.  S.  605  (1911) .  9 

Purity  Extract  Co.  v.  Lynch,  226  U.  S.  192  (1912)  57 

Slaughter-House  Cases,  16  Wall.  36  (1872), 

)  54,  63,  106,  109,  111,  112,  116 

Somerset  v.  Steward,  20  State  Trials,  1  (1772)  .  .  .  107 

Southern  Pacific  v.  Jensen,  244  U.  S.  205  (1916)  .  .  95 

South  Carolina  v.  United  States,  199  U.  S.  437 

(1905)  .  15,  66,  74 

Spies  v.  Illinois,  123  U.  S.  131  (1887) .  103 

Texas  v.  White,  7  Wall.  700  (1868) .  120,  137 

Traux  v.  Raich,  239  U.  S.  33  (1915) .  9,  18,  20 


VII 


Page 

United  States  v.  Cruikshank,  92  U.  S.  542  (1875), 


50,  51,  113,  114 

United  States  v.  Dewitt ,  9  Wall.  41  (1870) .  62 

United  States  v.  Lee,  106  U.  S.  196  (1882) .  9 

United  States  v.  N.  0.  Pac.  Ry.  Co.,  248  U.  S.  507 

(1919)  . .  23 

Van  Horn  v.  Dorrance,  2  Dali.  304  (1795) .  94 

Ware  v.  Hylton ,  3  Dali.  199  (1796) .  34 

Wilson  v.  New,  243  U.  S.  332  (1917) .  9,  20 


Articles  of  Confederation .  34,  35,  71,  91 

Blackstone’s  Commentaries  .  52,  79,  80 

Cooley’s  Constitutional  Limitations .  56,  67,  92,  93 

Documentary  History  of  Constitution .  .  125,  126,  127,  128 

Eighteenth  Amendment,  so-called .  2 

Elliot’s  Debates, 


23,  24,  25,  33,  36,  37,  38,  41,  42,  43,  44,  53,  85 

89,  90,  91,  93,  94,  107,  108,  132,  133 


English  Dictionaries  .  81,  82,  83,  84,  85 

Farrand,  Federal  Convention .  29,  68,  86,  87,  132 

Federalist ,  The .  43,  88 

Gales  &  Seaton’s  Debates .  46,  88,  99,  100,  101 

Jameson’s  Constitutional  Conventions .  95 

Law  Dictionaries .  78,  79 

Poore,  Charters  and  Constitutions .  69,  70,  71 

Reed  Amendment .  60 

Rhode  Island  Constitution .  131 

Statutes  of  Amendment  and  Jeofail .  75,  76,  77,  78 

Taylor,  American  Constitution .  68 

Virginia  Resolutions,  Report  on .  33,  53 

Watson  on  the  Constitution .  123 

Webb-Kenyon  Act .  60 

Wilson  Act  .  60 


Supreme  Court  of  thr  lottrb  States 

OCTOBER  TERM,  1919 


No.  29  Original 

STATE  OF  RHODE  ISLAND,  Complainant 

— vs— 

A.  MITCHELL  PALMER,  ATTORNEY  GENERAL 
AND  DANIEL  C.  ROPER,  COMMISSIONER 
OF  INTERNAL  REVENUE,  Defendants 


Brief  of  Complainant  on  Motion  to  Dismiss 

The  State  of  Rhode  Island  alleges  in  its  bill  that  the 
Sixty-fifth  Congress  of  the  United  States  of  America  at  its 
Second  Session  begun  and  held  at  the  City  of  Washington  on 
Monday,  the  third  day  of  December,  A.  D.  one  thousand 
nine  hundred  and  seventeen,  assuming  a  power  not  dele¬ 
gated  to  Congress  by  any  provision  of  the  Constitution  of 
the  United  States,  and  in  derogation  of  the  constitution 
and  laws  of  the  State  of  Rhode  Island,  and  of  the  rights  of 
the  people  thereof,  enacted  a  “ Joint  Resolution  Proposing 
an  Amendment  to  the  Constitution  of  the  United  States”, 
pretending  to  submit  thereby  to  the  Legislatures  of  the 
several  States  of  the  United  States  a  so-called  Eighteenth 
Amendment  to  the  Constitution  of  the  United  States, 
whereby  it  was  provided  that  the  manufacture,  sale  and 
transportation  of  intoxicating  liquors  for  beverage  pur¬ 
poses  within  the  State  of  Rhode  Island  should  be  prohibited; 


2 


said  “Joint  Resolution  Proposing  an  Amendment  to  the 
Constitution  of  the  United  States'*  being  in  the  following 
form : 

“Resolved  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled 
( two-thirds  of  each  House  concurring  therein ),  That  the 
following  amendment  to  the  Constitution  be,  and  hereby  is, 
proposed  to  the  States,  to  become  valid  as  a  part  of  the  Con¬ 
stitution  when  ratified  by  the  legislatures  of  the  several 
States  as  provided  by  the  Constitution : 

“ARTICLE 

“Section  1.  After  one  year  from  the  ratification  of 
this  article  the  manufacture,  sale  or  transportation  of 
intoxicating  liquors  within,  the  importation  thereof 
into,  or  the  exportation  thereof  from  the  United  States 
and  all  territory  subject  to  the  jurisdiction  thereof  for 
beverage  purposes  is  hereby  prohibited. 

“Sec.  2.  The  Congress  and  the  several  States  shall 
have  concurrent  power  to  enforce  this  article  by  ap¬ 
propriate  legislation. 

“Sec.  3.  This  article  shall  be  inoperative  unless  it 
shall  have  been  ratified  as  an  amendment  to  the  Con¬ 
stitution  by  the  legislatures  of  the  several  States,  as 
provided  in  the  Constitution,  within  seven  years  from 
the  date  of  the  submission  hereof  to  the  States  by  the 
Congress.” 

The  complainant  avers  that  the  power  exercised  by 
Congress  in  enacting  the  said  Joint  Resolution,  pretending 
to  submit  thereby  to  the  Legislatures  of  the  several  States 
of  the  United  States  the  so-called  Eighteenth  Amendment 
to  the  Constitution  of  the  United  States,  as  aforesaid,  was 
not  delegated  to  Congress  by  the  provisions  of  Article  V 
of  the  Constitution  of  the  United  States,  and  the  exercise 
by  Congress  of  the  power  to  enact  such  Joint  Resolution, 


< 


3 


as  aforesaid,  was  a  proceeding  unconstitutional  and  revolu¬ 
tionary;  and  further,  that  the  proposal  of  the  so-called 
Eighteenth  Amendment  to  the  Constitution  of  the  United 
States,  as  aforesaid,  is  not  a  proposal  of  an  amendment  to 
the  Constitution  of  the  United  States  within  the  intent, 
purview  and  scope  of  Article  V  of  the  Constitution  of  the 
United  States,  but  is  an  unconstitutionl  and  revolutionary 
proposal  to  the  Legislatures  of  the  several  States  of  a  re¬ 
vision  and  addition  to  the  Constitution  of  the  United  States 

• 

that  is  destructive  of  the  fundamental  principles  of  said 
Constitution  and  of  the  government  established  thereby 
under  the  form  and  guise  of  a  proposal  of  a  valid  amend¬ 
ment  to  the  Constitution  of  the  United  States  and  under 
the  form  and  pretense  of  complying  with  constitutional  pro¬ 
cedure  ;  and  further,  that  the  proposal  of  the  so-called 
Eighteenth  Amendment,  for  the  reasons  aforesaid  and  other¬ 
wise,  was  unconstitutional,  inoperative  and  void. 

The  complainant  further  avers  that  although  the  pro¬ 
posal  of  the  so-called  Eighteenth  Amendment  to  the  Con¬ 
stitution  of  the  United  States,  as  aforesaid,  was  unconsti¬ 
tutional,  inoperative  and  void,  on  the  28th  day  of  December, 
A.  D.  1917,  the  Honorable  Robert  Lansing,  Secretary  of 
State  of  the  United  States,  without  authority  in  law  and 
under  the  form  and  pretense  of  complying  with  constitu¬ 
tional  procedure,  forwarded  a  certified  copy  of  said  “ Joint 
Resolution  Proposing  an  Amendment  to  the  Constitution  of 
the  United  >  States,”  to  the  Governor  of  each  State  of 
the  L^nited  States,  and  that  the  Governors  of  the  several 
States  of  the  United  States  thereafter  submitted  the  so-called 
Eighteenth  Amendment  to  the  Constitution  of  the  United 
States,  as  set  forth  in  the  Joint  Resolution  of  Congress,  as 
aforesaid,  to  their  respective  Legislatures,  and  thereafter 
the  Legislatures  of  three  fourths  of  the  several  States 


4 


of  the  United  States,  assuming  a  power  not  delegated  to 
said  Legislatures  by  any  provision  of  the  Constitution  of  the 
United  States,  and  in  derogation  of  the  constitution  and  laws 
of  the  State  of  Rhode  Island,  enacted  resolutions  of  alleged 
ratification  of  the  so-called  Eighteenth  Amendment  to  the 
Constitution  of  the  United  States  as  submitted  by  Con¬ 
gress,  as  aforesaid,  under  the  form  and  pretense  of  com¬ 
plying  with  constitutional  procedure  provided  in  the  case 
of  a  valid  amendment  to  the  Constitution  of  the  United 
States,  and  thereafter  certified  copies  of  the  resolution  of 
alleged  ratification  of  the  so-called  Eighteenth  Amendment 
by  the  aforesaid  Legislatures  were  forwarded  to  the  State 
Department  of  the  United  States,  the  certification  of  the 
alleged  ratification  from  each  State  illegally  and  erron¬ 
eously  setting  forth  that  the  so-called  Eighteenth  Amend¬ 
ment  to  the  Constitution  of  the  United  States  had  been 
adopted  as  an  amendment  to  the  Constitution  of  the  United 
States  by  the  Legislature  of  said  State  according  to  the 
provisions  of  the  Constitution  of  the  United  States. 

The  complainant  further  avers  that  the  power  exercised 
by  each  of  the  Legislatures  of  the  several  States  of  the  United 
States  in  enacting  an  alleged  ratification  of  the  so-called 
Eighteenth  Amendment  to  the  Constitution  of  the  United 
States,  as  aforesaid,  was  not  delegated  to  the  Legislatures 
of  the  several  States  of  the  United  States  by  the  provisions 
of  Article  Y  of  the  Constitution  of  the  United  States,  and 
the  exercise  by  each  of  the  Legislatures  of  the  several  States 
of  the  power  to  enact  a  resolution  of  alleged  ratification  of 
the  so-called  Eighteenth  Amendment,  as  aforesaid,  was  a 
proceeding  unconstitutional  and  revoluntionary ;  and  fur¬ 
ther,  that  the  alleged  ratification  of  the  so-called  Eighteenth 
Amendment  to  the  Constitution  of  the  United  States  by  each 
•of  the  Legislatures  of  the  several  States  as  aforesaid,  was 


5 


not  a  ratification  of  an  amendment  to  the  Constitution  of 
the  United  States  within  the  intent,  purview  and  scope  of 
Article  V  of  the  Constitution  of  the  United  States,  but  was 
an  unconstitutional  and  revolutionary  proceeding  in  refer¬ 
ence  to  a  revision  of  and  addition  to  the  Constitution  of 
the  United  States  that  is  destructive  of  the  fundamental 
principles  of  said  Constitution  and  of  the  government  es¬ 
tablished  thereby  under  the  form  and  guise  of  a  ratification 
of  a  valid  amendment  to  the  Constitution  of  the  United 
States,  and  under  the  form  and  pretense  of  complying  with 
constitutional  procedure;  and  further,  that  the  alleged  rati¬ 
fication  of  the  so-called  Eighteenth  Amendment  to  the  Con¬ 
stitution  of  the  United  States  by  each  of  the  Legislatures 
of  the  several  States,  for  the  reasons  aforesaid  and  other¬ 
wise,  was  unconstitutional,  inoperative  and  void. 

And  complainant  further  avers  that  the  Congress  of 
the  United  States  and  the  Legislatures  of  the  several  States 
of  the  United  States  are  the  representatives  and  agents  of 
the  people  of  the  United  States  in  proposing  and  ratifying 
amendments  to  the  Constitution  within  the  intent,  purview 
and  scope  of  Article  V  of  the  Constitution  of  the  United 
States,  and  within  the  intent,  purview  and  scope  of  the  origi¬ 
nal  delegation  of  powers  to  the  people  of  the  United  States 
under  the  Constitution  of  the  United  States;  and  that  the 
alleged  proposal  by  Congress,  as  aforesaid,  and  the  alleged 
ratification  by  the  Legislatures  of  the  several  States,  as. 
aforesaid,  were  not  within  the  scope  of  the  original  delega¬ 
tion  of  powers  to  the  people  of  the  United  States  and  were 
not  within  the  power  and  authority  of  Congress  and  the 
Legislatures  as  agents  of  the  people  of  the  United  States; 
and  further,  that  the  Congress  of  the  United  States  and 
the  Legislatures  of  the  several  States,  as  aforesaid,  are 
neither  the  judges  of  their  respective  powers  nor  of  tho 


6 


limitations  thereof  under  the  Constitution  of  the  United 
States. 

And  complainant  further  avers  that  the  Governor  of 
the  State  of  Rhode  Island  submitted  the  proposal  of  the 
so-called  Eighteenth  Amendment,  as  aforesaid,  to  two  suc¬ 
cessive  General  Assemblies  of  the  State  of  Rhode  Island,  said 
General  Assembly  being  the  Legislature  of  the  State  of 
Rhode  Island,  and  both  of  said  General  Assemblies  refused 
to  enact  any  resolution  in  alleged  ratification  of  the  so- 
called  Eighteenth  Amendment  to  the  Constitution  of  the 
United  States,  and  refused  to  regard  or  entertain  the  pro¬ 
posal  of  said  so-called  Eighteenth  Amendment  to  the  Con¬ 
stitution  of  the  United  States  as  a  valid  proposal  of  amend¬ 
ment,  and  the  General  Assemblv  of  the  State  of  Rhode 
Island  has  ever  asserted  and  now  asserts  that  the  proposal 
of  the  so-called  Eighteenth  Amendment  to  the  Constitution 
of  the  United  States  is  not  a  valid  proposal  of  amendment 
to  said  Constitution,  and  that  the  General  Assembly  has  no 
power  or  authority  to  ratify  or  approve  said  so-called 
Eighteenth  Amendment  as  a,  valid  amendment  to  the  Con¬ 
stitution  of  the  United  States ;  and  further,  that  the  Consti¬ 
tution  of  the  United  States  does  not  delegate  to  the  govern¬ 
ment  of  the  United  States,  nor  to  the  people  of  the  United 
States,  any  power  of  police  and  economy  with  respect  to 
the  internal  affairs  of  the  State  of  Rhode  Island,  nor  is 
said  power  with  respect  to  the  internal  affairs  of  the  State 
of  Rhode  Island  prohibited  by  said  Constitution  to  the  State 
of  Rhode  Island,  but  is  expressly  reserved  to  the  State  of 
Rhode  Island  and  the  sovereign  people  thereof;  and  further, 
that  neither  the  power  of  police  and  economy  with  respect 
to  the  internal  affairs  of  the  State  of  Rhode  Island  nor  the 
discretion  in  the  exercise  thereof  can  be  bargained  awayy 
surrendered,  yielded  or  transferred  effectually  to  bind  the 


7 


people  of  said  State  and  their  posterity,  if  at  all,  without 
“an  explicit  and  authentic  act  of  the  whole  people”  of  said 
State. 

And  finally  the  complainant  avers  that  thereafter  Con¬ 
gress,  illegally  and  erroneously  assuming  that  a  power  had 
been  delegated  to  it  by  the  provisions  of  the  so-called 
Eighteenth  Amendment,  passed  an  act  commonly  known  as 
the  Volstead  Act,  with  the  intent  and  purpose  of  enforcing 
the  so-called  Eighteenth  Amendment  within  the  State  of 
Rhode  Island;  that  such  portion  of  said  Volstead  Act  as 
relates  and  applies  to  the  enforcement  of  the  so-called 
Eighteenth  Amendment  is  unconstitutional  and  void,  in  so 
far  as  the  same  relates  to  the  manufacture,  sale,  barter,  trans¬ 
port,  delivery,  furnishing  or  possession  of  any  intoxicating 
liquor  within  the  State  of  Rhode  Island,  or  the  making  of 
any  of  said  acts  within  the  State  of  Rhode  Island  a  crime 
against  the  United  States,  said  acts  within  the  State  of 
Rhode  Island  being  lawful  and  authorized  under  the  con¬ 
stitution  and  laws  of  the  State  of  Rhode  Island;  that  al¬ 
though  the  so-called  Eighteenth  Amendment  is  unconstitu¬ 
tional  and  void,  and  although  such  portion  of  the  so-called 
Volstead  Act  as  relates  and  applies  to  the  enforcement  of 
the  so-called  Eighteenth  Amendment  is  unconstitutional  and 
void,  it  is  nevertheless  the  purpose,  intent  and  threat  (now 
executed)  of  the  defendants  to  enforce  the  fines,  imprison¬ 
ments  and  forfeitures  provided  in  said  Volstead  Act,  as 
aforesaid,  within  the  State  of  Rhode  Island,  on  the  ground 
that  the  manufacture,  sale,  barter,  transport,  delivery,  fur¬ 
nishing,  or  possession  of  intoxicating  liquor  within  the  State 
of  Rhode  Island  is  contrary  to  law  and  a  crime  against  the 
United  States,  although  all  said  acts  within  the  State  of 
Rhode  Island  are  lawful  and  authorized  under  the  consti¬ 
tution  and  laws  of  said  State;  and  alleging  irreparable 


8 


injury  and  damage  to  the  State  of  Rhode  Island  and  to  the 
people  thereof,  complainant  prays  injunctive  relief. 


(2)  Motion  to  Dismiss 

The  motion  for  leave  to  file  the  bill  having  been  granted, 
and  the  bill  having  been  filed,  the  defendants  now  present 
the  following  motion  to  dismiss  in  the  nature  of  a  demurrer : 

“Before  answering  the  bill  of  complaint  in  the 
above-stated  case  come  now  the  defendants  therein  and 
present  this  motion  to  dismiss  said  bill  of  complaint  in 
the  nature  of  a  demurrer  thereto,  and  pray  that  such 
bill  be  dismissed  upon  the  following  grounds : 

“First.  Because  the  matters  and  things  set  up  in 
said  bill  of  complaint  present  no  matter  of  a  justiciable 
character  between  said  complainant  and  these  defend¬ 
ants,  nor  does  it  set  up  any  subject  matter  properly  in¬ 
volving  the  jurisdiction  of  this  court  under  the  grant  of 
judicial  power  to  said  court. 

“ Second .  Because  the  facts  stated  in  said  bill  of 
complaint  do  not  set  up  any  cause  of  action. 

“Third.  Because  the  said  bill  of  complaint  alleges 
no  cause  of  action  against  these  defendants  or  either  of 
them. 

“Fourth.  Because  there  is  no  equity  in  said  bill  of 
complaint. 

“Wherefore  these  defendants  pray  that  said  bill  of 
complainant  be  dismissed  and  these  defendants  be  not 
further  required  to  plead  thereto.” 


9 


(3)  Original  Jurisdiction  of  Supreme  Court 


The  jurisdictional  power  of  this  Court  to  afford  equit¬ 
able  relief  to  the  compainant  turns  upon  the  theory  and 
averments  of  the  bill  that  the  so-called  Eighteenth  Amend¬ 
ment  is  usurpatory  and  void.  The  equity  of  the  bill  depends 
upon  the  correctness  of  its  theory.  United  States  v.  Lee,  106 
U.  S.  196,  (1882)  ;  Ex  parte  Young,  209  U.  S.  123,  155, 
(1908)  ;  Philadelphia  Co.  v.  Stimson,  223  U.  S.  605,  619, 
(1911)  ;  Traux  v.  Raich,  239  U.  S.  33,  37,  (1915)  ;  Wilson 
v.  Netc,  243  U.  S.  332,  (1917)  ;  Hammer  v.  Dagenhart,  247 
U.  S.  251,  (1918).  A  preliminary  question  therefore  is  pre¬ 
sented  for  the  determination  of  this  Court,  a  question  of 
constitutional  interpretation.  Is  the  so-called  Eighteenth 
Amendment  usurpatory  and  void?  This  brief  is  addressed 
to  that  issue. 


In  approaching  any  discussion  of  conflict  between  the 
respective  powers  of  a  State  and  those  of  the  Nation,  the 
words  of  Mr.  Chief  Justice  Marshall,  in  the  great  case  of 
McCulloch  v.  Maryland,  4  Wheat.  316,  400,  (1819),  naturally 
recur.  About  to  establish  for  all  time  the  boundaries  which 
separate  the  two  jurisdictions,  he  thus  solemnly  prefaced 
his  opinion  in  that  case :  “The  constitution  of  our  country, 
in  its  most  interesting  and  vital  parts,  is  to  be  considered; 
the  conflicting  powers  of  the  government  of  the  Union  and 
of  its  members,  as  marked  in  that  constitution,  are  to  be 
discussed;  and  an  opinion  given,  which  may  essentially  in¬ 
fluence  the  great  operations  of  the  government.  No  tribunal 
can  approach  such  a  question  without  a  deep  sense  of  its  im¬ 
portance,  and  of  the  awful  responsibility  involved  in  its 
decision.  But  it  must  be  decided  peacefully,  or  remain  a 
source  of  hostile  legislation,  perhaps  of  hostility  of  a  still 
more  serious  nature;  and  if  it  is  to  be  so  decided,  by  this 


•> 


10 


tribunal  alone  can  the  decision  be  made.  On  the  Supreme 
Court  of  the  United  States  has  the  constitution  of  our  coun¬ 
try  devolved  this  important  duty.” 

In  the  same  case,  the  Chief  Justice,  in  considering  the 
jurisdiction  of  this  Court  and  the  high  dut}'  imposed  upon 
it  by  the  Constitution,  observed:  “The  judiciary  cannot,  as 
the  legislature  may,  avoid  a  measure  because  it  approaches 
the  confines  of  the  constitution.  We  cannot  pass  it  by  be- 
cause  it  is  doubtful.  With  whatever  doubts,  with  whatever 
difficulties,  a  case  may  be  attended,  we  must  decide  it,  if  it 
be  brought  before  us.  We  have  no  more  right  to  decline  the 
exercise  of  jurisdiction  which  is  given,  than  to  usurp  that 
which  is  not  given.  The  one  or  the  other  would  be  treason 
to  the  constitution.  Questions  may  occur  which  we  would 
gladly  avoid;  but  we  cannot  avoid  them.  All  we  can  do 
is,  to  exercise  our  best  judgment,  and  conscientiously  to 
perform  our  duty.”  And  he  added :  “Should  Congress,  in 
the  execution  of  its  powers,  adopt  measures  which  are  pro¬ 
hibited  by  the  constitution;  or  should  Congress,  under  the 
pretext  of  executing  its  powers,  pass  laws  for  the  accom¬ 
plishment  of  objects  not  entrusted  to  the  government ;  it 
would  become  the  painful  duty  of  this  tribunal,  should  a 
case  requiring  such  a  decision  come  before  it,  to  say  that 
such  an  act  was  not  the  law  of  the  land.” 

Two  years  later,  in  the  case  of  Cohens  v.  Virginia,  6 
Wheat.  204,  384,  (1821),  Mr.  Chief  Justice  Marshall,  with 
keen  insight  to  the  possible  necessity  of  a  later  day,  laid 
down  a  rule  of  construction  that  is  here  applicable.  In 
speaking  of  the  proposition  that  the  judicial  power  of  every 
well-constructed  government  must  be  co-extensive  with  the 
legislative,  and  must  be  capable  of  deciding  every  judicial 
question  which  grows  out  of  its  constitution,  he  said : 


“If  any  proposition  may  be  considered  as  a  political 
axiom,  this,  we  think,  may  be  so  considered.  In  reason¬ 
ing  upon  it  as  an  abstract  question,  there  would,  prob¬ 
ably,  exist  no  contrariety  of  opinion  respecting  it. 
Every  argument,  proving  the  necessity  of  the  depart¬ 
ment,  proves  also  the  propriety  of  giving  this  ext  ent  to 
it.  We  do  not  mean  to  say,  that  the  jurisdiction  of  the 
Courts  of  the  Union  should  be  construed  to  be  co-exten- 
sive  with  the  legislative,  merely  because  it  is  fit  that 
it  should  be  so;  but  we  mean  to  say,  that  this  fitness 
furnishes  an  argument  in  construing  the  constitution 
which  ought  never  to  be  overlooked,  and  which  is  most 
especially  entitled  to  consideration,  when  we  are  in¬ 
quiring,  whether  the  words  of  the  instrument  which 
purports  to  establish  this  principle,  shall  be  contracted 
for  the  purpose  of  destroying  it.” 

This  rule  of  construction  as  to  the  extent  of  the  judicial 
power,  thus  stated  in  Cohens  v.  Virginia,  was  approved  and 
applied  in  the  noted  case  of  Ahleman  v.  Booth,  21  How.  506, 
520,  (1858).  There  Mr.  Chief  Justice  Taney  made  it  clear 
that  it  was  within  the  province  of  this  Court  to  check  usur¬ 
pation  and  to  protect  the  States  from  encroachment  upon 
their  reserve  powers  by  the  general  government,  that  the 
supremacy  of  the  Constitution  might  be  maintained.  In 
delivering  the  opinion  of  the  Court,  he  asserted : 

“The  judicial  power  covers  every  legislative  act  of 
Congress,  whether  it  be  made  within  the  limits  of  its 
delegated  powers,  or  be  an  assumption  of  power  heyoncl 
the  grants  in  the  Constitution. 

“This  judicial  power  was  justly  regarded  as  indis¬ 
pensable,  not  merely  to  maintain  the  supremacy  of  the 
laws  of  the  United  States,  but  also  to  guard  the  States 
from  any  encroachment  upon  their  reserved  rights  by 
the  General  Government.  And  as  the  Constitution  is 
the  fundamental  and  supreme  law,  if  it  appears  that 
an  act  of  Congress  is  not  pursuant  to  and  within  the 


12 


limits  of  the  power  assigned  to  tlie  Federal  Govern¬ 
ment,  it  is  the  duty  of  the  courts  of  the  United  States 
to  declare  it  unconstitutional  and  void.  The  grant  of 
judicial  power  is  not  confined  to  the  administration  of 
laws  passed  in  pursuance  to  the  provisions  of  the  Con¬ 
stitution,  nor  confined  to  the  interpretation  of  such 
laws ;  but,  by  the  very  terms  of  the  grant,  the  Consti¬ 
tution  is  under  their  view  when  any  act  of  Congress  is 
brought  before  them,  and  it  is  their  duty  to  declare  the 
law  void,  and  refuse  to  execute  it,  if  it  is  not  pursu¬ 
ant  to  the  legislative  powers  conferred  upon  Congress. 
*  *  * 

“So  long,  therefore,  as  this  Constitution  shall  en¬ 
dure,  this  tribunal  must  exist  with  it,  deciding  in  the 
peaceful  forms  of  judicial  proceeding  the  angry  and 
irritating  controversies  between  sovereignties ,  which  in 
other  countries  have  been  determined  by  the  arbitra¬ 
ment  of  force.” 

In  the  last  judicial  paper  from  the  pen  of  Mr.  Chief 
Justice  Taney,  an  opinion  upon  the  question  of  jurisdiction 
in  the  case  of  Gordon  v.  United  States ,  2  Wall.  561,  (1864), 
reported  in  Gordon  v.  United  States,  117  U.  S.  697,  700, 
(1864),  that  eminent  jurist  positively  declared  the  powers 
and  duties  of  this  tribunal  in  cases  of  conflicting  sovereign¬ 
ties.  This  opinion  furnishes  ample  support  to  complainant’s 
%  cause.  We  quote  from  it  extendedly: 

“The  position  and  rank,  therefore,  assigned  to  this 
Court  in  the  Government  of  the  United  States,  differ 
from  that  of  the  highest  judicial  power  in  England, 
Avhich  is  subordinate  to  the  legislative  power,  and  bound 
to  obey  any  law  that  Parliament  may  pass,  although  it 
may,  in  the  opinion  of  the  court,  be  in  conflict  with  the 
principles  of  Magna  Charta  or  the  Petition  of  Rights. 

“The  reason  for  giving  such  unusual  poAver  to  a 
judicial  tribunal  is  obvious.  It  Avas  necessary  to  give  it 
from  the  complex  character  of  the  GoA’ernment  of  the 


13 


United  States,  which  is  in  part  National  and  in  part 
Federal :  where  two  separate  governments  exercise  cer¬ 
tain  powers  of  sovereignty  over  the  same  territory,  each 
independent  of  the  other  within  its  appropriate  sphere 
of  action,  and  where  there  was,  therefore,  an  absolute 
necessity ,  in  order  to  preserve  internal  tranquillity ,  that 
there  should  be  some  tribunal  to  decide  betioeen  the 
Government  of  the  United  States  and  the  government  of 
a  State  tvhenever  any  controversy  should  arise  as  to  their 
relative  and  respective  powers  in  the  common  territory. 
The  Supreme  Court  i vas  created  for  that  purpose,  and 
to  insure  its  impartiality  it  was  absolutely  necessary  to 
make  it  independent  of  the  legislative  power,  and  the 
influence  direct  or  indirect  of  Congress  and  the  Execu¬ 
tive.  Hence  the  care  with  which  its  jurisdiction, 
powers,  and  duties  are  defined  in  the  Constitution,  and 
its  independence  of  the  legislative  branch  of  the  govern¬ 
ment  secured. 

“In  No.  38  of  the  Federalist,  written  by  Mr.  Madi¬ 
son,  the  necessity  and  object  of  this  provision  is  clearly 
stated.  In  that  number,  after  explaining  with  great 
perspicuity  the  complex  character  of  the  government, 
being  partly  National  and  partly  Federal,  he  proceeds 
to  say  (page  265  Towson’s  Ed.)  :  ‘In  this  relation, 
then,  the  proposed  government  cannot  be  deemed  a 
national  one,  since  its  jurisdiction  extends  to  certain 
enumerated  objects  only,  and  leaves  to  the  several  States 
a  residuary  and  inviolable  sovereignty  over  all  other 
objects .’  *  *  * 

“It  was  to  prevent  an  appeal  to  the  sword  and  a 
dissolution  of  the  compact  that  this  Court,  by  the 
organic  law,  was  made  equal  in  origin  and  equal  in  title 
to  the  legislative  and  executive  branches  of  the  govern¬ 
ment  ;  its  powers  defined,  and  limited,  and  made  strictly 
judicial,  and  placed  therefore  beyond  the  reach  of  the 
powers  delegated  to  the  Legislative  and  Executive  De¬ 
partments.  And  it  is  upon  the  principle  of  the  perfect 


14 


independence  of  this  Court,  that  in  cases  where  the  Con¬ 
stitution  gives  its  original  jurisdiction,  the  action  of 
Congress  has  not  deemed  necessary  to  regulate  its  exer¬ 
cise,  or  to  prescribe  the  process  to  be  used  to  bring  the 
parties  before  the  court,  or  to  carry  its  judgment  into 
execution.  The  jurisdiction  and  judicial  power  being 
vested  in  the  court,  it  proceeded  to  prescribe  its  process 
and  regulate  its  proceedings  according  to  its  own  judg¬ 
ment,  and  Congress  has  never  attempted  to  control  or 

interfere  with  the  action  of  the  court  in  this  respect. 
*  *  * 

f,The  Constitution  of  the  United  States  delegates  no 
judicial  power  to  Congress.  Its  powers  are  confined  to 
legislative  duties,  and  restricted  within  certain  pre¬ 
scribed  limits.  By  the  second  section  of  Article  VI,  the 
laws  of  Congress  are  made  the  supreme  laAv  of  the  land 
only  when  they  are  made  in  pursuance  of  the  legislative 
power  specified  in  the  Constitution;  and  by  the  Xth 
Amendment  the  powers  not  delegated  to  the  United 
States  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively  or  to  the  people.  The  reserva¬ 
tion  to  the  States  respectively  can  only  mean  the  reser¬ 
vation  of  the  rights  of  sovereignty  which  they  respec¬ 
tively  possessed  before  the  adoption  of  the  Constitution 
of  the  United  States ,  and  which  they  had  not  parted 
from  by  that  instrument.  And  any  legislation  by  Con¬ 
gress  beyond  the  limits  of  the  power  delegated,  would  be 
trespassing  upon  the  rights  of  the  States  or  the  people, 
and  Avould  not  be  the  supreme  laAv  of  the  land,  but  null 
and  void;  and  it  would  be  the  duty  of  the  courts  to 
declare  it  so.  For  AATiether  an  act  of  Congress  is  within 
the  limits  of  its  delegated  power  or  not  is  a  judicial 
question.” 

There  maA’  be  added  the  statement  of  Mr.  Justice  BreAver 
in  the  case  of  In  re  lleff,  197  U.  S.  488,  505  (1905)  :  “In 
this  Republic  there  is  a  dual  system  of  government,  National 
and  State.  Each  Avithin  its  oavii  domain  is  supreme,  and  one 


i5 


of  the  chief  functions  of  this  Court  is  to  preserve  the  balance 
between  them,  protecting  each  in  the  power  it  possesses,  and 
preventing  any  trespass  thereon  by  the  other.”  Mr.  Justice 
Brewer  expressed  the  same  view  in  the  later  case  of  South 
Carolina  v.  United  States,  199  IT.  S.  437,  448  (1905)  : 

“We  have  in  this  Republic  a  dual  system  of  govern¬ 
ment,  National  and  State,  each  operating  within  the 
same  territory  and  upon  the  same  persons;  and  yet 
working  without  collision,  because  their  functions  are 
different.  There  are  certain  matters  over  which  the 
National  Government  has  absolute  control  and  no  action 
of  the  State  can  interfere  therewith,  and  there  are  others 
in  which  the  State  is  supreme  and  in  respect  to  them 
the  National  Government  is  powerless.  To  preserve  the 
even  balance  between  these  two  governmnts  and  hold 
each  in  its  separate  sphere  is  the  peculiar  duty  of  all 
courts,  preeminently  of  this — a  duty  oftentimes  of  great 
delicacy  and  difficulty.” 


(4)  Propriety  of  State  Action. 

As  set  forth  in  the  brief  of  the  complainant  upon  the 
motion  to  file,  the  defendants  without  any  warrant  in  law 
are  exerting  an  authority  over  the  internal  affairs  of  the 
State  of  Rhode  Island  that  is  in  defiance  of  those  original  and 
inherent  powers  of  the  State,  never  delegated,  but  reserved 
under  the  Constitution.  The  defendants  are  interfering 
with  the  exercise  of  those  powers  and  with  the  functions 
of  State  government.  “Bound  hand  and  foot  by  the  pro¬ 
hibitions  of  the  Constitution,  a  complainant  State  can 
neither  treat,  agree,  or  fight  with  its  adversary.”  Under 
these  circumstances  it  is  the  highest  right  and  duty 
of  the  State  as  a  matter  of  self-preservation  to  assert  its 
authority  and  seek  to  maintain  it  in  this  Court.  Where,  as 


i6 


in  this  case,  the  wrongs  are  threatened  by  officials  of  the 
Federal  Government  who  are  beyond  the  territorial  boun¬ 
daries  of  the  State  this  tribunal  is  not  merely  the  proper,  but 
the  only  tribunal  in  which  the  authority  of  the  State  may  be 
vindicated. 

In  re  Debs,  158  U.  S.  561,  (1895)  on  a  petition  for  a  writ 
of  habeas  corpus  brought  by  the  defendant  Debs  to  relieve 
him  from  imprisonment  for  contempt,  after  having  dis¬ 
obeyed  an  injunction  forbidding  interference  with  trains 
carrying  the  mails,  the  defendant  contended  that  the  United 
States  had  no  standing  in  a  court  of  equity  and  that  there¬ 
fore  the  injunction  was  invalid.  Mr.  Justice  Brewer,  in 
delivering  the  opinion  of  the  Court,  said : 

“Neither  can  it  be  doubted  that  the  government  has 
such  an  interest  in  the  subject  matter  as  enables  it  to 
appear  as  party  plaintiff  in  this  suit.  It  is  said  that 
equity  only  interferes  for  the  protection  of  property 
and  the  government  has  no  property  interest.  A  suffi¬ 
cient  reply  is  that  the  United  States  have  a  property 
in  the  mails.  *  *  *” 

“We  do  not  care  to  place  our  decision  upon  this 
ground  alone.  Every  government,  entrusted  by  the  very 
terms  of  its  being  with  powers  and  duties  to  be  exer¬ 
cised  and  discharged  for  the  general  welfare,  has  a  right 
to  apply  to  its  own  courts  for  any  proper  assistance  in 
the  exercise  of  the  one  and  the  discharge  of  the  other, 
and  it  is  no  sufficient  answer  to  its  appeal  to  one  of 
those  courts  that  it  has  no  pecuniary  interest  in  the 
matter.  The  obligations  which  it  is  under  to  promote 
the  interests  of  all  and  to  prevent  the  wrongdoing  of 
one  resulting  in  injury  to  the  general  welfare  is  often 
of  itself  sufficient  to  give  it  a  standing  in  court.’' 

That  it  is  as  important  for  a  State  government  to  seek 
assistance  from  the  Court  in  the  exercise  of  its  powers  and 
the  discharge  of  its  duties  as  it  is  for  the  Federal  Govern- 


17 


ment,  was  clearly  indicated  by  Mr.  Justice  Day  in  Hammer 

/  fj  9J  t/ 

Y.  Dagenhart,  247  U.  S.  251,  275,  (1917)  : 

“ The  maintenance  of  the  authority  of  the  states 
over  matters  purely  local  is  as  essential  to  the  preserva¬ 
tion  of  our  institutions  as  is  the  conservation  of  the 
supremacy  of  the  Federal  power  in  all  matters  intrusted 
to  the  nation  by  the  Federal  Constitution. 

“In  interpreting  the  Constitution  it  must  never  be 
forgotten  that  the  nation  is  made  up  of  states,  to  which 
are  intrusted  the  powers  of  local  government.  And  to 
them  and  to  the  people  the  powers  not  expressly  dele¬ 
gated  to  the  national  government  are  reserved.  Lane 
County  v.  Oregon ,  7  Wall.  71,  76.  The  power  of  the 
states  to  regulate  their  purely  internal  affairs  by  such 
laws  as  seem  wise  to  the  local  authority  is  inherent,  and 
has  never  been  surrendered  to  the  general  government.” 

The  State,  however,  has  a  further  interest  in  this  suit. 
It  not  only  seeks  to  prevent  an  interruption  in  the  exercise 
of  its  governmental  powers,  but  also  seeks  the  protection 
which  this  Court  may  afford  by  injunctive  relief  from  irrep¬ 
arable  damage  to  its  property  interests.  The  State  and  its 
subdivisions  have  already  lost  considerable  sums  bv  the  re- 
fusal  of  its  citizens  to  take  out  licenses  for  the  sale  of  non- 
intoxicating  liquors,  said  non-intoxicating  liquors  under  the 
laws  of  the  State  of  Rhode  Island  being  intoxicating  liquors 
under  the  so-called  Volstead  Act.  The  refusal  to  take  out 
said  licenses  is  due  to  fear  of  fines  and  penalties  under  the 
provisions  of  the  so-called  Volstead  Act  and  in  consequence 
of  the  threats  of  the  defendants  to  enforce  said  Act  although 
unconstitutional  and  void.  The  State  and  its  subdivisions 
will  continue  to  lose  large  sums  aggregating  more  than  six 
hundred  thousand  dollars  per  year.  The  State  will  also 
suffer  serious  losses  in  its  income  from  taxes  on  ratable  prop¬ 
erty,  which  it  has  by  its  laws  permitted  to  be  created  and  to 


1 8 


exist  within  the  State  under  its  protection.  This  property 
damage,  however,  the  defendants  contend  is  remote  and  in¬ 
direct.  They  even  assert  that  there  is  no  deprivation  of 
property  or  property  rights  because  the  State  is  not  deprived 
of  a  fund  now  existing  or  to  which  its  right  has  already 
accrued.  Such  a  limited  view  of  the  scope  of  equitable  juris¬ 
diction  and  relief  is  entirely  at  variance  with  the  recent  deci¬ 
sions  of  this  Court. 

In  the  case  of  Hammer  v.  Dagenhart,  supra,  a  bill  was 
filed  in  the  United  States  District  Court  for  the  western 
district  of  North  Carolina  by  a  father  in  his  own  behalf,  as 
next  friend  of  his  two  minor  sons,  one  under  the  age  of  four¬ 
teen  years  and  the  other  between  the  ages  of  fourteen  and 
sixteen  years,  employes  in  a  cotton  mill  at  Charlotte,  North 
Carolina,  to  enjoin  the  enforcement  of  an  Act  of  Congress, 
intended  to  prevent  interstate  commerce  in  the  production 
of  child  labor.  The  suit  was  directed  against  the  United 

States  Attornev.  The  District  Court  held  the  act  uncon- 

*/ 

stitutional,  and  entered  a  decree  enjoining  its  enforcement. 
The  cause  came  to  this  Court  on  appeal  and  the  decree  of  the 
District  Court  was  here  affirmed.  The  only  property  inter¬ 
est  protected  by  equity  was  the  right  of  continuing  in  an 
employment  undisturbed  by  enforcement  of  an  unconsti¬ 
tutional  act. 

The  case  of  Traux  v.  Raich,  239  U.  S.  33,  (1915)  is  of 
a  similar  nature.  The  State  of  Arizona  passed  a  law  provid¬ 
ing  that  no  employer  of  more  than  five  workers  shall  employ 
not  less  than  eighty  per  cent  of  qualified  electors  or  native- 
born  citizens.  The  appellee  was  a  native  of  Austria  and  an 
inhabitant  of  Arizona,  but  not  a  qualified  elector.  He  was 
employed  as  a  cook  by  the  appellant,  Traux.  Traux  had 
nine  employes,  of  whom  seven  were  neither  native-born  citi¬ 
zens  of  the  United  States  or  qualified  electors.  The  appel- 


19 


lee  was  informed  by  his  employer  that  when  the  law  was 
proclaimed,  and  solely  by  reason  of  its  requirements  and, 
because  of  the  fear  of  the  penalties  that  would  be  incurred 
in  case  of  its  violation,  he  would  be  discharged.  Thereupon 
the  appellee  filed  his  bill  in  the  District  Court  of  the  United 
States  for  the  District  of  Arizona  to  enjoin  the  Attorney 
General  of  the  State  of  Arizona  from  enforcing  the  act.  The 
bill  sought  a  decree  declaring  the  act  to  be  unconstitutional 
and  restraining  procedure  thereunder.  The  District  Court 
enjoined  the  defendants  from  enforcing  the  act  and  on  ap¬ 
peal  to  this  Court  the  decree  of  the  District  Court  was 
affirmed.  In  reference  to  the  claim  of  the  appellants  that 
the  bill  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action  in  equity,  Mr.  Justice  Hughes,  delivering  the  opinion 
of  the  Court,  said: 

“The  right  to  earn  a  livelihood  and  to  continue  in 
employment  unmolested  by  efforts  to  enforce  void  enact¬ 
ments  should  similarly  be  entitled  to  protection  in 
the  absence  of  adequate  remedy  at  law.  It  is  said  that 
the  bill  does  not  show  an  employment  for  a  term,  and 
that  under  an  employment  at  will  the  complainant  could 
be  discharged  at  any  time,  for  any  reason  or  for  no 
reason,  the  motive  of  the  employer  being  immaterial. 
The  conclusion,  however,  that  is  sought  to  be  draivn,  is 
too  broad.  The  fact  that  the  employment  is  at  the 
Avill  of  the  parties,  respectively,  does  not  make  it  one  of 
the  will  of  others.  The  employee  has  manifest  interest 
in  the  freedom  of  the  employer  to  exercise  his  judgment 
without  illegal  interference  or  compulsion  and,  by  the 
weight  of  authority,  the  unjustified  interference  of  third 
persons  is  actionable  although  the  employment  is  at 
will.”  .  .  . 

“It  is  further  urged  that  the  complainant  cannot 
sue  save  to  redress  his  own  grievance  ( McCabe  v.  Atchi¬ 
son ,  T.  d  8.  F.  R.  Co.,  235  U.  S.  151,  162)  ;  that  is,  that 


20 


the  servant  cannot  complain  for  the  master,  and  that 
it  is  the  master  who  is  subject  to  prosecution,  and 
not  the  complainant.  But  the  act  undertakes  to  operate 
directly  upon  the  employment  of  aliens,  and  if  enforced 
would  compel  the  employer  to  discharge  a  sufficient 
number  of  his  employees  to  bring  the  alien  quota  within 
the  prescribed  limit.  It  sufficiently  appears  that  the 
discharge  of  the  complainant  will  be  solely  for  the  pur¬ 
pose  of  meeting  the  requirements  of  the  act  and  avoid¬ 
ing  threatened  prosecution  under  its  provisions.  It  is, 
therefore,  idle  to  call  the  injury  indirect  or  remote.  It 
is  also  entirely  clear  that  unless  the  enforcement  of  the 
act  is  restrained  the  complainant  will  have  no  adequate 
remedy,  and  hence  we  think  that  the  case  falls  within 
the  class  in  which,  if  the  unconstitutionalitv  of  the  act 
is  shown,  equitable  relief  may  be  had.” 

In  discussing  the  basis  of  equitable  jurisdiction  in  the 
recent  case  of  International  News  Service  v.  Associated 
Press ,  248  U.  S.  236,  (1918)  the  Supreme  Court  said: 

4 ‘In  order  to  sustain  the  jurisdiction  of  equity  over 
the  c  out  rover  sv,  we  need  not  affirm  anv  general  and 
absolute  property  in  the  news  as  such.  The  rule  that  a 
court  of  equity  concerns  itself  only  in  the  protection  of 
property  rights  treats  any  civil  right  of  pecuniary  na¬ 
ture  as  a  property  right  *  *  *  and  the  right  to  ac¬ 

quire  property  by  honest  labor  or  the  conduct  of  a  law¬ 
ful  business  is  as  much  entitled  to  protection  as  the 
right  to  guard  property  already  acquired.” 

Hammer  v.  Dagenhart ,  247  II.  S.  251  (1918). 

Wilson  v.  Hew,  243  U.  S.  332  (1917). 

Traux  v.  Raich ,  239  IT.  S.  33  (1915). 

Dobbins  v.  Los  Angeles,  195  IT.  S.  223  (1904). 

The  State  of  Rhode  Island  is  a  party  in  interest  in  this 
suit  not  only  for  the  protection  of  its  governmental  and 
property  rights  in  its  corporate  capacity,  but  it  also  has  an 


21 


interest  and  a  duty  to  all  its  citizens  to  secure  to  them  their 
common  rights  whenever  the  action  complained  of  affects 
the  public  at  large.  This  suit  therefore  is  brought  not  only 
on  behalf  of  the  State,  but  also  on  behalf  of  the  people  of  the 
State.  This  interest  in  the  people  of  the  State  rests  upon 
the  obligation  to  protect  all  the  citizens  of  the  State  in  the 
unrestricted  exercise  and  free  enjoyment  of  all  those  rights 
and  privileges  to  which  they  are  entitled.  The  State  in  thus 
acting  as  trustee,  guardian  or  representative  of  all  the  peo¬ 
ple  has  an  interest  in  the  matter  at  issue,  even  if  it  had  itself 
no  pecuniary  or  property  rights  of  its  own  involved. 

In  Georgia  v.  Tennessee  Copper  Co .,  206  U.  S.  230 
(1907)  an  original  bill  in  equity  was  brought  by  the  State 
of  Georgia  to  enjoin  a  foreign  corporation  from  discharging 
noxious  gases  from  its  works  in  Tennessee  over  large  tracts 
of  territory  in  Georgia.  The  bill  alleged  that  the  noxious 
gases  worked  a  wholesale  destruction  of  forests,  orchards  and 
crops,  and  that  other  injuries  resulted  and  were  threatened. 
The  jurisdiction  was  sustained  and  an  injunction  granted 
by  this  Court.  Mr.  Justice  Holmes,  in  delivering  the  opin¬ 
ion  of  the  Court,  said : 

“The  case  has  been  argued  largely  as  if  it  were 
one  between  two  private  parties ;  but  it  is  not.  The  very 
elements  that  would  be  relied  upon  in  a  suit  between 
fellow-citizens  as  a  ground  for  equitable  relief  are  want¬ 
ing  here.  The  state  owns  very  little  of  the  territory 
alleged  to  be  affected,  and  the  damage  to  it  capable  of 
estimate  in  money,  possibly,  at  least,  is  small.  This  is 
a  suit  by  a  state  for  an  injury  to  it  in  its  capacity  as 
quasi-sovereign.  In  that  capacity  the  state  has  an  in¬ 
terest  independent  of  and  behind  the  titles  of  its  citizens, 
in  all  the  earth  and  air  within  its  domain.  It  has  the 
last  word  as  to  whether  its  mountains  shall  be  stripped 
of  their  forests,  and  its  inhabitants  shall  breathe  pure 


22 


air.  It  might  have  to  pay  individuals  before  it  could 
utter  that  word,  but  with  it  remains  the  final  power. 
The  alleged  damage  to  the  state  as  a  private  owner,  is 
merely  a  makeweight,  and  we  may  lay  on  one  side  the 
dispute  as  to  whether  the  destruction  of  forests  has  led 
to  the  gullying  of  its  roads.  *  *  * 

“Some  peculiarities  necessarily  mark  a  suit  of  this 
kind.  If  the  state  has  a  case  at  all,  it  is  somewhat  more 
certainly  entitled  to  specific  relief  than  a  private  party 
might  be.  It  is  not  lightly  to  be  required  to  give  up 
quasi-sovereign  rights  for  pay;  and,  apart  from  the 
difficulties  of  valuing  such  rights  in  money,  if  that  be  its 
choice  it  may  insist  that  an  infraction  of  them  shall  be 
stopped.  The  states,  by  entering  the  Union,  did  not  sink 
to  the  position  of  private  owners,  subject  to  one  system 
of  private  laic.” 

The  view  that  it  is  the  dutv  of  the  Nation  or  State  to 

«/ 

enforce  the  common  rights  of  its  citizens  is  expressed  in  the 
case  of  In  re  Debs,  158  U.  S.  5G4  (1895).  Mr.  Justice  Brewer 
there  remarked : 

“It  is  obvious  from  these  decisions  that  while  it  is 
not  the  province  of  the  government  to  interfere  in  the 
mere  matter  of  private  controversy  between  individuals 
or  to  use  its  great  powers  to  enforce  the  rights  of  one 
against  another,  yet  whenever  the  wrongs  complained 
of  are  such  as  affect  the  public  at  large  and  are  in  re¬ 
spect  of  matters  which  by  the  Constitution  are  intrusted 
to  the  care  of  the  Nation  and  concerning  which  the 
Nation  owes  the  duty  to  all  the  citizens  of  securing 
to  them  their  common  rights,  then  the  mere  fact  that 
the  government  has  no  pecuniary  interest  in  the  eon- 

troversv  is  not  sufficient  to  exclude  it  from  the  courts 
«/ 

or  to  prevent  it  from  taking  measures  therein  to  fully 
discharge  those  constitutional  duties.” 

A  State  holds  in  trust  the  public  interests  of  its  citizens, 
and  where  it  seeks  to  fulfil  its  obligation  under  that  trust 


23 


by  injunctive  process,  a  pecuniary  interest  of  the  State  in 
the  relief  sought  is  not  essential.  It  is  enough  if  there  be  an 
interest  or  concern  arising  out  of  the  obligation  to  those  for 
whose  benefit  the  suit  is  brought.  Mr.  Justice  Van  Devanter 
in  United  States  v.  New  Orleans  Pacific  Railway  Co.,  248 
U.  S.  507  (1919). 

The  General  Assembly  of  Rhode  Island  regarded  the 
proposal  by  Congress  of  the  so-called  Amendment  as  revolu¬ 
tionary  and  usurpatory  and  refused  to  entertain  it.  In 
view  of  its  oppressive  character  the  Legislature  directed  this 
action  with  the  purpose  of  protecting  and  defending  the 
sovereign  powers  of  the  State  and  the  liberty  and  independ¬ 
ence  of  its  people.  The  States  of  the  Union  stand  upon  an 
equality.  Rhode  Island  seeks  no  advantage  peculiar  to  it¬ 
self,  but  only  that  protection  to  which  every  State  is  entitled 
under  the  Constitution.  It  acts  in  the  only  way  in  which 
it  may  act  through  its  legislative  body  and  legal  officers,  and 
while  its  course,  like  the  occasion  of  it,  may  be  without  prece¬ 
dent,  it  is  not  without  the  highest  constitutional  sanction. 

The  situation  which  has  arisen  through  the  usurpation 
of  power  by  Congress  was  feared  from  the  beginning, 
although  the  particular  guise  under  which  it  has  been 
brought  about  was  not  anticipated.  When  the  adoption  of 
the  Constitution  was  under  discussion  the  State  govern¬ 
ments  were  regarded  as  the  natural  barrier  between  the 
liberties  of  the  people  and  any  invasion  which  might  be  at¬ 
tempted  by  the  general  government.  “Every  new  power 
given  to  Congress,”  said  Mr.  Nicholas  of  Virginia,  “is  taken 
from  the  State  Legislatures;  they  will  be,  therefore,  very 
watchful  over  them  (Congress)  ;  for,  should  they  exercise 
any  power  not  vested  in  them,  it  will  be  a  usurpation  of  the 
rights  of  the  different  State  Legislatures,  who  would  sound 
the  alarm  to  the  people.”  El.  Deb.,  Vol.  3,  p.  18.  Mr.  Ames 


24 


of  Massachusetts  observed:  “The  state  governments  rep¬ 
resent  the  wishes,  and  feelings,  and  local  interests,  of  the 
people.  They  are  the  safeguard  and  ornament  of  the  Con¬ 
stitution;  they  will  protract  the  period  of  our  liberties;  they 
will  afford  a  shelter  against  the  abuse  of  power,  and  will  be 
the  natural  avengers  of  our  violated  rights.”  El.  Deb.,  Vol. 
2,  p.  46.  “If  there  should  be  a  usurpation,”  said  Mr.  Par¬ 
sons  of  Massachusetts,  “it  will  be  upon  thirteen  legislatures, 
completely  organized,  possessed  of  the  confidence  of  the  peo¬ 
ple,  and  having  the  means,  as  well  as  inclination,  success¬ 
fully  to  oppose  it.  Under  these  circumstances,  none  but 
madmen  would  attempt  a  usurpation,  but,  sir,  the  people 
themselves  have  it  in  their  power  effectually  to  resist  usur¬ 
pation,  without  being  driven  to  an  appeal  to  arms.  An  act 
of  usurpation  is  not  obligatory;  it  is  not  law;  and  any  man 
may  be  justified  in  his  resistance.”  El.  Deb.,  Vol.  2,  p.  94. 

The  propriety  of  state  action  in  the  manner  here  pur¬ 
sued  is  clearly  indicated  by  Mr.  Hamilton  in  several  of  his 
arguments  before  the  Yew  York  Convention.  Elliot’s  De¬ 
bates,  Vol.  2. 

“The  most  powerful  obstacle  to  the  members  of 
Congress  betraying  the  interest  of  their  constituents,  is 
the  state  legislatures  themselves,  who  will  be  standing 
bodies  of  observation,  possessing  the  confidence  of  the 
people,  jealous  of  federal  encroachments,  and  armed 
with  every  power  to  check  the  first  essays  of  teaehery. 
They  will  institute  regular  modes  of  inquiry.  The  com¬ 
plicated  domestic  attachments,  which  subsist  between 
the  state  legislatures  and  their  electors,  will  ever  make 
them  vigilant  guardians  of  the  people’s  rights.”  p.  266. 

“The  people  have  an  obvious  and  powerful  protec¬ 
tion  in  their  state  governments.  Should  any  thing  dan¬ 
gerous  be  attempted,  these  bodies  of  perpetual  observa¬ 
tion  will  be  capable  of  forming  and  conducting  plans 
of  regular  opposition.  Can  we  suppose  the  people’s  love 


25 


of  liberty  will  not,  under  the  incitement  of  their  legisla¬ 
tive  leaders,  be  roused  into  resistance,  and  the  madness 
of  tyranny  be  extinguished  at  a  blow?  Sir,  the  danger 
is  too  distant ;  it  is  beyond  all  rational  calculations.” 
p.  253. 

“Whenever  Congress  shall  meditate  any  infringe¬ 
ment  of  the  state  constitutions,  the  great  body  of  the 
people  will  naturally  take  part  with  their  domestic  rep¬ 
resentatives.  Can  the  general  government  withstand 
such  a  united  opposition?  Will  the  people  suffer  them¬ 
selves  to  be  stripped  of  their  privileges?  Will  they 
suffer  their  legislatures  to  be  reduced  to  a  shadow  and 
a  name?  The  idea  is  shocking  to  common  sense.” 
p.  304. 

The  people  of  Rhode  Island,  therefore,  with  the  same 
love  of  liberty  and  independence  as  animated  the  Fathers  of 
the  Republic,  seek  in  this  only  orderly  way  available  to  re¬ 
sist  usurpation  and  to  maintain  the  principles  of  the  Consti¬ 
tution  in  all  their  vigor  and  guard  them  from  the  destruc¬ 
tive  influence  of  a  despotism  that  is  no  less  hateful  and 
oppressive  because  of  its  pretended  benevolence. 


(5)  The  Issue. 

The  State  of  Rhode  Island  seeks  to  enjoin  within  its 
territorial  limits  the  enforcement  of  the  Volstead  Act.  The 
title  “Volstead  Act,”  as  herein  used,  refers  only  to  those  por¬ 
tions  of  that  Act  which  were  designed  to  carry  into  effect  the 
so-called  Eighteenth  Amendment.  The  other  portions,  en¬ 
acted  under  the  war  powers  of  Congress,  have  no  connection 
with  this  cause.  The  complainant  avers  that  the  Volstead 
Act  is  unconstitutional,  not  because  of  its  drastic  and  sum¬ 
mary  provisions,  but  on  the  ground  that  Congress  had  no 
authority  whatever  to  legislate  upon  the  subject  matter  for 


26 


times  of  peace.  Congress  exercised  that  authority  upon  the 
assumption  that  the  so-called  Eighteenth  Amendment  was 
valid.  If  the  so-called  Amendment  is  invalid,  the  Volstead 
Act,  so  far  as  it  applied  to  that  Amendment,  has  no  sanction 
in  law.  This  brief,  therefore,  is  limited  to  the  contention 
that  the  so-called  Amendment  is  invalid. 

Neither  time  nor  space  will  permit  a  discussion  of  all 
the  objections  that  might  be  raised  to  the  so-called  Amend¬ 
ment;  and  yet  some  of  the  objections  to  it,  not  dealt  with  in 
this  brief,  are  so  serious  that  they  should  not  be  overlooked 
in  reaching  a  just  estimate  of  its  constitutional  standing  and 

value.  The  attention  of  the  Court  mav  be  called  to  the  fol- 

1/ 

lowing  apparent  defects,  thus  briefly  stated:  that  the  so- 
called  Amendment  is  in  form  a  municipal  regulation,  an  en¬ 
actment  of  law;  that  it  is  merely  a  regulation  of  personal 
conduct;  that  it  has  no  relation  to  any  article  or  section  of 
the  Constitution,  nor  to  any  power  delegated  thereby,  nor  to 
any  object  or  purpose  expressed  therein;  that  it  has  no  ref¬ 
erence  to  the  structure  of  government  and  does  not  involve 
any  political  principle;  that  it  converts  the  amending  func¬ 
tion  into  a  legislative  power  and  thus  conflicts  with  Article 
I,  Section  1,  of  the  Constitution;  that  in  the  provision  that 
Congress  and  the  several  States  shall  have  “concurrent 
power”  to  enforce  the  article,  it  creates  a  conflict  between 
sovereignties  that  are  independent  and  separate;  that  in  the 
provision  limiting  ratification  within  seven  years,  it  imposes 
an  unconstitutional  restriction  upon  the  Legislatures;  that 
instead  of  amending  the  Federal  Constitution,  it  amends  the 
Constitution  of  every  State  in  the  Union  without  the  con¬ 
sent  of  the  people  thereof. 

Without  waiving  the  privilege  of  urging  in  argument 
any  ground  of  invalidity,  the  State  of  Rhode  Island  prefers 
to  contest  the  issue  in  its  more  fundamental  aspect,  that  the 


2 ; 


so-called  Amendment  is  a  direct  invasion  of  the  jurisdiction 
and  powers  of  the  State  and  of  the  rights  of  its  people,  and 
is  wholly  unauthorized  by  the  amending  clause  of  the  Con¬ 
stitution.  The  first  section  of  the  so-called  Amendment 

i 

reads :  “After  one  year  from  the  ratification  of  this  article 
the  manufacture,  sale  or  transportation  of  intoxicating 
liquors  within,  the  importation  thereof  into,  or  the  exporta¬ 
tion  thereof  from  the  United  States  and  all  territory  subject 
to  the  jurisdiction  thereof,  for  beverage  purposes  is  hereby 
prohibited.”  If  the  provisions  of  this  first  section  were  in¬ 
tended  to  apply  to  the  territory  over  which  the  United  States 
has  territorial  jurisdiction,  with  reference  to  the  power  exer¬ 
cised  and  the  subject  matter  regulated,  no  exception  could 
be  taken  by  a  State  in  regard  thereto.  The  United  States, 
however,  has  no  territorial  jurisdiction  within  a  State,  either 
in  respect  to  the  power  exercised  or  in  respect  to  the  subject 
matter  regulated  by  the  so-called  Amendment.  It  has  such 
jurisdiction  under  the  Constitution  only  in  the  District  of 
Columbia,  in  the  territories  and  insular  possessions.  The 
propaganda  in  connection  with  the  alleged  proposal  by  Con¬ 
gress  and  the  alleged  ratification  by  the  Legislatures,  and 
the  provisions  of  the  so-called  Amendment  as  a  whole  make 
it  clear  that  the  term,  “United  States,”  was  intended  to  be 
and  is  construed  as  including  the  territory  of  all  the  States 
as  subject  to  the  jurisdiction  of  the  United  States  in  respect 
to  the  power  exercised  and  the  subject  matter  regulated. 
The  purpose,  therefore,  of  this  so-called  Amendment  is  to 
impose  federal  authority,  within  the  territorial  limits  of  the 
States,  over  a  subject  matter  that  is  inseparable  from  terri¬ 
torial  sovereignty,  although  the  execution  of  this  purpose 
involves  stripping  the  respective  States  and  the  sovereign 
people  thereof  of  a  power  and  of  a  discretion  in  the  exercise 
of  that  power  that  they  have  possessed  and  enjoyed  as 


28 


inalienable  from  the  beginning.  The  right  of  self-government 
is  impaired,  and  self-government  is  liberty. 

Whether  this  so-called  Amendment  is  valid  depends 
upon  the  construction  of  Article  V,  which  reads  in  part  as 
follows : 

“The  congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendment  to 
this  constitution,  or,  on  the  application  of  the  legisla¬ 
tures  of  two-thirds  of  the  several  states,  shall  call  a 
convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part 
of  this  constitution,  when  ratified  by  the  legislatures  of 
three-fourths  of  the  several  states,  or  by  conventions  in 
three-fourths  thereof,  as  the  one  or  the  other  mode  of 
ratification  may  be  proposed  by  the  congress;  *  * 

If  the  position  of  the  defendants,  relating  to  the  merits 
of  the  controversy,  is  correctly  understood  from  the  brief 
filed  and  the  arguments  advanced  in  opposing  the  motion 
for  leave  to  file  the  bill,  it  is  substantially  this : 

First.  The  defendants  contend  that  the  amending  func¬ 
tion  of  Congress  and  the  Legislatures  of  three-fourths  of  the 
States  is  a  substantive  power. 

To  this  the  complainant  makes  ansAver  that  the  amend¬ 
ing  function  of  Congress  and  the  Legislatures  of  three- 
fourths  of  the  States  is  not  a  substantive  power.  Amending 
a  constitution  is  not  a  purpose  nor  an  end  of  government. 
Government  is  not  instituted  nor  powers  delegated  that  they 
may  be  corrected.  The  amending  function  is  merely  an  inci- 
dent,  an  accompaniment  to  the  framing  of  the  Constitution. 
It  was  not  regarded  as  a  legislative,  executive  or  judicial 
power,  nor  classed  with  those  substantive  powers  in  Articles 
I,  II,  and  HI,  of  the  original  Constitution.  Its  place  in 
Article  V,  at  the  end  of  all  delegated  powers,  is  not  without 
significance.  It  indicates  that  it  is  an  appurtenance  to  what 


29 


precedes ;  a  precautionary  safeguard  to  insure  that  the  great 
ends  to  be  attained,  as  set  forth  in  the  instrument  itself, 
should  not  be  defeated  by  unintentional  error  committed  in 
the  process.  Had  Article  V  been  omitted  altogether,  the 
structure  of  government  would  have  still  been  complete  and 
its  operation  assured.  With  such  an  omission  an  amenda¬ 
tory  function  might  have  been  inferred  as  an  incident  to  the 
powers  delegated,  in  order  that  the  purpose  of  the  instru¬ 
ment  might  not  be  defeated.  In  fact,  so  non-essential  did 
this  amendatory  provision  appear  to  some  of  the  members 
of  the  Federal  Convention  that  it  was  moved  to  strike  out 
Article  V  altogether  from  the  draft.  Farrand,  Fed.  Conv., 
Yol.  2,  p.  630. 

Second.  The  defendants  contend  that  an  “amendment 
to  this  Constitution”  means  any  addition  to,  subtraction 
from,  change  in,  alteration  or  revision  of  this  Constitution. 

To  this  the  complainant  makes  answer  that  an  amend¬ 
ment  to  this  Constitution  does  not  mean  any  addition  to, 
subtraction  from,  change  in,  or  alteration  or  revision  of  this 
Constitution.  Such  a  meaning  cannot  be  gathered  either 
from  any  analytical  definition  nor  from  any  proper  con¬ 
struction  of  the  instrument.  Such  an  interpretation  renders 
the  word  “amendment”  meaningless  and  of  no  intendment, 
and  in  effect  eliminates  it.  Had  there  been  any  purpose  to 
authorize  Congress  and  the  Legislatures  of  tliree-fourths  of 
the  States,  mere  officials,  to  add  to,  subtract  from,  change, 
alter,  or  revise  the  Constitution,  so  authoritatively  estab¬ 
lished  by  the  people,  Article  Y  would  have  clearly  expressed 
that  intent  by  including  those  terms.  The  word  “amend¬ 
ment”  is  a  technical  word  of  common  law  significance  and 
means  simply  “the  correction  of  an  error  committed  in  a 
process.”  Amendments  are  thus  limited  to  the  correction  of 
errors  committed  in  the  framing  of  the  Constitution.  It  is 


30 


the  only  word  that  is  appropriate  in  connection  with  an 
instrument  of  limited  scope,  powers  and  jurisdiction. 

Third.  The  defendants  contend  that  the  amending  func¬ 
tion  as  a  substantive  power  is  unlimited,  with  the  single 
exception  “that  no  State,  without  its  consent,  shall  be  de¬ 
prived  of  its  equal  suffrage  in  the  Senate.” 

To  this  the  complainant  makes  answer  that  the  amend¬ 
ing  function  is  limited,  both  by  its  nature  and  by  other  con¬ 
stitutional  limitations.  The  exceptions  set  forth  in  the 
original  instrument  “that  no  amendment,  which  may  be 
made  prior  to  the  year  one  thousand  eight  hundred  and 
eight,  which  in  any  manner  affect  the  first  and  fourth 
clauses  in  the  ninth  section  of  the  first  article ;  and  that  no 
State,  without  its  consent,  shall  be  deprived  of  its  equal 
suffrage  in  the  Senate,”  are  exceptions  from  a  class  to  which 
amendments  applied.  That  class  included  all  articles  and 
sections  of  the  Constitution.  The  amending  function  prop¬ 
erly  construed  is  unlimited  as  to  them,  with  the  exceptions 
as  stated. 

Fourth.  The  defendants  contend  that  if  this  Court 
should  determine  that  a  proposal  by  Congress  of  an  “amend¬ 
ment  to  this  Constitution,”  as  above  defined,  was  not  a  pro¬ 
posal  of  an  “amendment  to  this  Constitution”  within  the 
purview  of  Article  V,  it  would  be  equivalent  to  the  assump¬ 
tion  of  a  veto  by  this  Court  upon  an  unlimited  power  of 
Congress. 

To  this  the  complainant  makes  answer  that  it  is  the 
province  of  this  Court  to  interpret  and  construe  the  Con¬ 
stitution  of  the  United  States.  Congress  is  the  creature 
and  not  the  creator  of  the  Constitution.  If  this  Court  may 
not  interpret  the  words  and  construe  the  clauses  in  Article 
V,  then  Congress  and  the  Legislatures  of  three-fourths  of 
the  States,  mere  officials,  may  ignore  all  constitutional  limi- 


3i 


v  tations  and  may  exert  the  powers  of  complete  sovereignty. 
Usurpation  may  thrive  unchecked. 

Fifth.  The  defendants  contend  that  whatever  the  pro¬ 
posal  by  Congress,  whether  an  addition  to,  a  subtraction 
from,  a  change  in,  or  an  alteration  or  revision  of  this  Con¬ 
stitution,  the  fact  that  Congress  has  made  such  proposal 
constitutes  it  ipso  facto  a  valid  and  unassailable  “amend¬ 
ment  to  this  Constitution ;”  and  that,  therefore,  this  Court 
has  no  jurisdiction  in  any  controversy  respecting  any  pro¬ 
posal  by  Congress  of  a  proposition  as  an  “amendment  to  this 
Constitution/’  with  the  single  exception  “that  no  State,  with¬ 
out  its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the 
Senate.” 

To  this  the  complainant  makes  answer  that  Congress 
is  not  omnipotent;  that  a  proposal  by  Congress  is  not  an 
“amendment  to  this  Constitution”  simply  because  it  is  pro¬ 
posed  by  Congress  as  such;  that  the  conclusion  to  which  the 
defendants’  argument  leads  eliminates  the  word  “amend¬ 
ment”  from  Article  V,  denies  the  right  of  this  Court  to 
interpret  and  construe  that  Article,  and  in  effect  overthrows 
every  constitutional  restraint  that  was  designed  to  protect 
the  State  or  the  individual.  Such  a  view  of  the  amending 
function  can  only  lead  to  tyranny  and  oppression.  It  is  the 
clear  duty  of  this  Court  to  keep  Congress  in  its  proposals  of 
“amendment  to  this  Constitution”  within  the  scope  and 
jurisdiction  of  federal  authority,  and  by  so  doing  maintain 
that  line  of  division  between  the  Federal  and  State  powers, 
which  was  so  clearly  marked  out  by  the  Constitution  and 
which  has  for  so  many  years  ensured  the  harmonious  opera¬ 
tion  of  our  dual  system  of  government, — ordained  and  estab¬ 
lished  as  perpetual. 

The  theory  of  amendment  which  the  defendants  thus 
present  is  new  in  constitutional  law.  That  it  has  been 


pressed  so  far  compels  consideration  and  necessitates  refu¬ 
tation.  It  could  not  have  been  deduced  from  any  decisions 
of  this  Court,  nor  from  any  other  authoritative  source.  It 
arises  solely  from  the  requirements  of  the  case  at  issue,  for 
the  nature  of  the  so-called  Amendment  is  such  that  nothing 
short  of  the  extreme  view  here  advanced  could  justify  or 
support  it.  The  doctrine  is  so  subversive  of  fundamental 
principles  that  its  acceptance  would  bring  about  a  constitu¬ 
tional  revolution.  It  would  convert  the  sovereignty  of  the 
people  into  a  sovereignty  of  officials.  It  would  endanger  the 
guaranties  of  civil  liberty  and  of  those  innumerable  rights 

o  «y  o 

that  have  been  inherited  from  the  common  law  since  the 
time  of  Magna  Charta.  Under  its  application  the  boundary 
established  by  the  Constitution  between  Federal  and  State 
authority  could  be  shifted  at  will,  as  officials  might  be 
influenced  by  political  cowardice  or  expediency.  In  fact,  all 
power  might  be  absorbed  by  the  Federal  Government  and 
the  States  become  dependencies,  States  only  in  name,  for  the 
mere  purpose  of  having  equal  representation  in  the  Senate. 
This  cause,  therefore,  will  serve  its  purpose  if  it  brings  to 
the  attention  of  this  Court  the  serious  danger  that  threatens 
the  cherished  principles  of  the  Constitution  and  the  per¬ 
petuity  of  free  government  thereunder. 


( G )  Established  Principles. 

As  preliminary  to  a  discussion  of  that  particular  article 
(Article  Y)  upon  which  the  defendants  rest  their  doctrine 
that  the  Federal  Government,  by  the  amending  function, 
may  invade  the  powers  and  jurisdiction  of  a  State  govern¬ 
ment,  it  may  be  well  to  consider  what  deductions  may  be 
fairly  drawn  from  the  origin  and  nature  of  the  Constitution 
and  the  relations  which  were  established  thereunder  betAveen 


33 


Nation  and  State.  We  are  not  led  to  this  consideration  by 
any  doubt  or  uncertainty  as  to  the  principles  to  be  deduced 
therefrom,  for  these  principles  have  long  been  recognized 
and  heretofore  regarded  as  controlling.  The  fact  that  de¬ 
fendants’  doctrine  runs  counter  to  them  necessitates  some 
inquiry  as  to  their  validity  and  binding  force. 

The  assertion  bv  the  American  colonies  that  they  of 
right  possessed  full  legislative  powers  in  all  matters  and 
concerns  relating  to  their  internal  affairs  and  the  denial  of 
these  rights  by  the  Crown  and  Parliament  brought  about  the 
Revolution.  Mr.  Madison  said  in  his  Report  on  the  Vir¬ 
ginia  Resolutions : 

“The  fundamental  principle  of  the  revolution  was, 
that  the  colonies  were  coordinate  members  with  each 
other,  and  with  Great  Britain,  of  an  empire  united  by 
a  common  executive  sovereign  but  not  united  by  any 
common  legislative  sovereign.  The  legislative  power 
was  maintained  to  be  as  complete  in  each  American 
Parliament  as  in  the  British  Parliament.  And  the  roval 
prerogative  was  in  force  in  each  colony,  by  virtue  of  its 
acknowledging  the  King  for  its  executive  magistrate, 
as  it  was  in  Great  Britain,  by  virtue  of  a  like  acknowl¬ 
edgment  there.  A  denial  of  these  principles  by  Great 
Britain,  and  the  assertion  of  them  by  America,  pro¬ 
duced  the  Revolution.”  EL  Deb.,  Vol.  4,  p.  562. 

The  General  Assemblv  of  the  Colonv  of  Rhode  Island 

severed  all  connection  with  the  Mother  Countrv  on  the  4th 

*/ 

day  of  May,  1776,  by  virtue  of  an  act  providing  “that  in  all 
commissions  for  officers,  civil  and  military:  and  in  all  writs 

7  e/  7 

and  processes  in  law,  whether  original,  judicial  or  execu¬ 
tory,  civil  or  criminal,  wherever  the  name  and  authoritv  of 
the  said  King  (George  III)  is  made  use  of,  the  same  shall 
be  omitted;  and  in  the  room  thereof,  the  name  and  authority 
of  the  Governor  and  Company  of  this  colony,  shall  be  sub- 


34 


stituted,  in  the  following  words,  to  wit :  “The  Governor  and 
Company  of  the  English  Colony  of  Rhode  Island  and  Provi¬ 
dence  Plantations.’  ”  The  other  colonies  took  the  same 
course  and  on  the  4th  day  of  July,  1776,  the  United  States, 
in  Congress  assembled,  declared  the  thirteen  united  colonies 
free  and  independent  States.  In  Ware  v.  Hylton,  3  Dali. 
199,  224  (179G),  Mr.  Justice  Chase  said: 

“I  consider  this  as  a  declaration,  not  that  the 
United  Colonies  jointly,  in  a  collective  capacity,  were 
independent  states,  &c.,  but  that  each  of  them  was  a 
sovereign  and  independent  state,  that  is,  that  each  of 
them  had  a  right  to  govern  itself  by  its  own  authority, 
and  its  own  laws,  without  any  controul  from  any  other 
power  upon  earth.  *  *  *  I  have  ever  considered  it 

as  the  established  doctrine  of  the  United  States,  that 
their  independence  originated  from,  and  commenced 
with,  the  declaration  of  Congress,  on  the  4th  of  July, 
1776;  and  that  no  other  period  can  be  fixed  on  for  its 
commencement;  and  that  all  laws  made  by  the  legisla¬ 
tures  of  the  several  states,  after  the  declaration  of  inde¬ 
pendence,  were  the  laws  of  sovereign  and  independent 
governments.” 

In  March,  1781,  the  several  States  united  in  a  League 
of  Friendship  for  the  “security  of  their  liberty”  under  the 
Articles  of  Confederation.  Under  these  Articles  no  State 
surrendered  or  delegated  any  power  over  its  internal  affairs 
and  civil  institutions,  and  it  was  expressly  provided  by 
Article  2  of  said  Articles  of  Confederation  that  “each  State 
retains  its  sovereignty,  freedom  and  independence  and  every 
power,  jurisdiction  and  right  which  is  not  by  this  confedera¬ 
tion  expressly  delegated  to  the  United  States  in  Congress 
assembled.”  In  Gibbons  v.  Ogden,  9  Wheat,  1,  187  (1824), 
Mr.  Chief  Justice  Marshall  observed:  “As  preliminary  to 
the  very  able  discussions  of  the  constitution,  which  we  have 
heard  from  the  bar,  and  as  having  some  influence  on  its  con- 


35 


struction,  reference  has  been  made  to  the  political  situation 
of  these  states,  anterior  to  its  formation.  It  has  been  said, 
that  they  were  sovereign,  were  completely  independent,  and 
were  connected  with  each  other  only  by  a  league.  This  is 
true.”  The  powers  conferred  upon  Congress  under  the 
Articles  of  Confederation  were  chiefly  those  which  were 
formerly  regarded  as  prerogatives  of  the  Crown  and  which 
had  fallen  in  by  the  Revolution.  They  did  not  relate  in  any 
manner  to  the  government  of  the  internal  affairs  of  the 
States,  nor  did  they  include  even  the  right  to  tax  or  to  regu¬ 
late  commerce,  which  were  considered  as  appurtenant  to 
legislative  sovereignty. 

The  weaknesses  of  the  government  under  the  Articles  of 
Confederation  soon  became  manifest.  The  central  govern¬ 
ment  had  no  authority  to  enforce  compliance  with  its  requi¬ 
sitions  and  the  States  regarded  them  as  less  obligatory  after 
the  termination  of  the  war.  Congress  was  powerless  to 
comply  with  treaty  obligations.  It  was  beyond  the  scope 
of  its  authority  to  protect  American  interests  by  trade  regu¬ 
lations,  either  foreign  or  between  the  States.  Credit  and 
confidence  had  been  impaired  by  the  issue  of  paper  money. 
The  Confederation  was  bankrupt  and  even  unable  to  pay  the 
interest  on  its  foreign  debt.  The  States  were  circumscribed 
with  enemies  from  Maine  to  Georgia.  Foreign  aggression 
was  feared  and  there  was  deep-seated  dread  of  insurrection 
and  anarchy.  The  defects  in  the  system  then  existing  were 
variously  stated  in  the  Federal  and  State  conventions,  and 
however  these  defects  were  set  forth,  no  reference  was  made 
to  any  incompetency  of  the  States  in  the  management  of  their 
internal  and  domestic  affairs ,  nor  to  any  design  or  intent 
of  intrusting  those  affairs  to  the  Federal  Government.  A 
single  quotation  will  suffice.  Mr.  Thatcher,  in  the  Massa¬ 
chusetts  Convention,  thus  described  the  situation : 


i 


36 


“On  the  one  hand,  the  haughty  Spaniard  lias  de¬ 
prived  us  of  the  navigation  of  the  River  Mississippi;  on 
the  other,  the  British  nation  are,  by  extravagant  duties, 
ruining  our  fishery.  Our  sailors  are  enslaved  by  the 
pirates  of  Algiers.  Our  credit  is  reduced  to  so  low  an 
ebb,  that  American  faith  is  a  proverbial  expression  for 
perfidy,  as  Punic  faith  was  among  the  Romans.  Thus 
have  we  suffered  every  species  of  infamy  abroad,  and 
poverty  at  home.  Such,  in  fact,  have  been  our  calami¬ 
ties,  as  are  enough  to  convince  the  most  skeptical  among 
us  of  the  want  of  a  general  government,  in  which 
energy  and  vigor  should  be  established,  and  at  the  same 
time,  the  rights  and  liberties  of  the  people  preserved. 
*  *  *  In  some  states,  laws  were  made  directly 

against  the  treaty  of  peace;  in  others,  statutes  were 
enacted  which  clashed  directly  against  any  federal 
union;  new  lands  sufficient  to  discharge  a  great  part 
of  the  Continental  debt  intruded  upon  by  needy  adven¬ 
turers;  our  frontier  settlements  exposed  to  the  ravages 
of  the  Indians;  while  the  several  states  were  unable  or 
unwilling  to  relieve  their  distress.  Lay  all  those  circum¬ 
stances  together,  and  you  will  find  some  apology  for 
those  gentlemen  who  framed  this  Constitution.  I  trust 
you  may  charitably  assign  other  motives  for  their  con¬ 
duct,  than  a  design  to  enslave  their  country,  and  to 
parcel  out  for  themselves  its  honors  and  emoluments.” 
El.  Deb.,  Vol.  2,  pp.  143,  144. 

It  is  generally  recognized  that  necessity  alone  brought 
the  statesmen  together  at  Philadelphia,  and  occasioned  the 
abandonment  of  a  system  that  had  proven  so  defective  and 
the  creation  of  a  new  form  of  government.  The  task  was 
prodigious.  The  prevailing  temper  of  the  time  cannot  be 
overlooked.  “It  is  universally  understood,  it  is  a  part  of 
the  history  of  the  day,”  remarked  Mr.  Chief  Justice  Mar¬ 
shall,  in  Barron  v.  Baltimore,  7  ret.  243,  250  (1833),  “that 
the  great  revolution  which  established  the  Constitution  of 
the  United  States  was  not  effected  without  immense  opposi- 


37 


tion.  Serious  fears  were  extensively  entertained  that  those 
powers  which  the  patriot  statesmen  who  then  watched  over 
the  interests  of  our  country,  deemed  essential  to  union,  and 
to  the  attainment  of  those  invaluable  objects  for  which 
union  was  sought,  might  be  exercised  in  a  manner  dangerous 
to  liberty.”  In  the  Pennsylvania  Convention,  Mr.  Wilson, 
afterwards  Mr.  Justice  Wilson  of  this  Court,  remarked: 
“The  citizens  of  the  United  States,  however  different  in  some 
other  respects,  are  well  known  to  agree  in  one  strongly- 
marked  feature  of  their  character, — a  warm  and  keen  sense 
of  freedom  and  independence.  This  sense  has  been  height¬ 
ened  by  the  glorious  result  of  their  late  struggle  against  all 
the  efforts  of  one  of  the  most  powerful  nations  of  Europe. 
It  was  apprehended,  I  believe,  by  some,  that  a  people  so 
highly  spirited  would  ill  brook  the  restraints  of  an  efficient 
government.”  El.  Deb.,  Yol.  2,  p.  420. 


(A)  All  Sovereignty  Resides  in  the  People. 

There  is  no  principle  better  established  than  that  our 
governments  in  Nation  and  State  are  governments  of  the 
people.  The  people  possess  all  sovereign  power.  Constitu¬ 
tional  government  is  based  upon  such  power  as  the  people 
have  designated  shall  be  exercised  by  their  representatives 
under  written  instruments.  The  Federal  Constitution  there¬ 
fore  was  submitted  for  ratification  directly  to  conventions  to 
be  chosen  by  the  people.  The  Legislatures  were  regarded  as 
incompetent  to  act.  The  principle  was  clearly  stated  by 
Col.  Mason  and  Mr.  Madison  in  the  course  of  debate  upon 
the  question  of  submission. 

“Col.  Mason  considered  a  reference  of  the  plan  to 
the  authority  of  the  people  as  one  of  the  most  important 


and  essential  of  the  resolutions.  The  legislatures  have 
no  power  to  ratify  it.  They  are  the  mere  creatures  of 
the  state  constitutions,  and  cannot  be  greater  than  their 
creators.  And  lie  knew  of  no  power  in  any  of  the  con¬ 
stitutions — he  knew  there  was  no  power  in  some  of 
them — that  could  be  competent  to  this  object.  Whither, 
then,  must  we  resort?  To  the  people,  with  whom  all 
power  remains  that  lias  not  been  given  up  in  the  con¬ 
stitutions  derived  from  them.  It  was  of  great  moment, 
lie  observed,  that  this  doctrine  should  be  cherished,  as 
the  basis  of  free  government.”  El.  Deb.,  Vol.  5,  p.  352. 

“Mr.  Madison  thought  it  clear  that  the  legislatures 
were  incompetent  to  the  proposed  changes.  These 
changes  would  make  essential  inroads  on  the  state  con¬ 
stitutions  ;  and  it  would  be  a  novel  and  dangerous  doc¬ 
trine,  that  a  legislature  could  change  the  constitution 
under  which  it  held  its  existence.  There  might  indeed 
be  some  constitutions  within  the  Union,  which  had  given 
a  power  to  the  legislature  to  concur  in  alterations  of  the 
federal  compact.  But  there  were  certainly  some  which 
had  not ;  and,  in  the  case  of  these,  a  ratification  must  of 
necessity  be  obtained  from  the  people.  He  considered 
the  difference  between  a  system  founded  on  the  legisla¬ 
tures  only,  and  one  founded  on  the  people,  to  be  the 
true  difference  between  a  league  or  treaty,  and  a  con¬ 
stitution.”  El.  Deb.,  Yol.  5,  p.  355. 

That  all  authority  is  derived  from  the  people  was  early 
expressed  by  Mr.  Chief  Justice  Marshall,  in  the  case  of 
McCulloch  v.  Maryland,  4  Wheat  316,  403  (1819),  and 
although  the  principle  is  clear,  his  expression  of  it  may  be 
recalled : 

“The  convention  which  framed  the  constitution  was 
indeed  elected  by  the  State  legislatures.  But  the  instru¬ 
ment,  when  it  came  from  their  hands,  was  a  mere  pro¬ 
posal,  without  obligation,  or  pretensions  to  it.  It  was 
reported  to  the  then  existing  Congress  of  the  United 
States,  with  a  request  that  it  might  ‘be  submitted  to  a 


39 


convention  of  Delegates,  chosen  in  each  State  by  the 
people  thereof,  under  the  recommendation  of  its  Legisla¬ 
ture,  for  their  assent  and  ratification.’  This  mode  of 
proceeding  was  adopted;  and  by  the  Convention,  by 
Congress,  and  by  the  State  Legislatures,  the  instrument 
was  submitted  to  the  people.  They  acted  upon  it  in  the 
only  manner  in  which  they  can  act  safely,  effectively, 
and  wisely,  on  such  a  subject,  by  assembling  in  Conven¬ 
tion.  It  is  true,  they  assembled  in  their  several  States — 
and  where  else  should  they  have  assembled?  No  politi¬ 
cal  dreamer  teas  ever  ivild  enough  to  think  of  breaking 
down  the  lines  which  separate  the  States,  and  of  com¬ 
pounding  the  American  people  into  one  common  mass. 
Of  consequence,  when  they  act,  they  act  in  their  States. 
But  the  measures  they  adopt  do  not,  on  that  account, 
cease  to  be  the  measures  of  the  people  themselves,  or 
become  the  measures  of  the  State  Governments. 

“From  these  Conventions,  the  constitution  derives 
its  whole  authority.  The  government  proceeds  directly 
from  the  people;  is  ‘ordained  and  established/  in  the 
name  of  the  people;  and  is  declared  to  be  ordained,  ‘in 
order  to  form  a  more  perfect  union,  establish  justice, 
ensure  domestic  tranquility,  and  secure  the  blessings 
of  liberty  to  themselves  and  to  their  posterity/  The 
assent  of  the  States,  in  their  sovereign  capacity,  is  im¬ 
plied  in  calling  a  Convention,  and  thus  submitting  that 
instrument  to  the  people.  But  the  people  were  at  per¬ 
fect  liberty  to  accept  or  reject  it ;  and  their  act  was  final. 
It  required  not  the  affirmance ,  and  could  not  be  nega¬ 
tived,  by  the  State  governments.”  .  .  . 

“But  when,  ‘in  order  to  form  a  more  perfect  union/ 
it  was  deemed  necessary  to  change  this  alliance  into  an 
effective  government,  possessing  great  and  sovereign 
powers,  and  acting  directly  on  the  people,  the  necessity 
of  referring  it  to  the  people,  and  of  deriving  its  powers 
directly  from  them,  was  felt  and  acknowledged  by  all. 
The  government  of  the  Union,  then  (whatever  may  be 
the  influence  of  this  fact  on  the  case)  is,  emphatically, 
and  truly,  a  government  of  the  people.  In  form  and 


40 


substance  it  emanates  from  them.  Its  powers  are 
granted  by  them,  and  are  to  be  exercised  directly  on 
them,  and  for  their  benefit.” 


(B)  The  Federal  Government  Limited  to  Prevent 

Encroachments. 

The  submission  of  the  Constitution  to  the  people  met 
the  strongest  opposition  and  divided  the  country  into  two 
great  parties.  Their  differences  turned  chiefly  on  the  con¬ 
struction  of  the  instrument.  The  Federalists  claimed  that 
the  Constitution  was  a  special  delegation  of  power,  differing 
from  the  State  constitutions  in  which  the  delegation  was 
general;  that  the  Federal  Government  could  exercise  only 
such  powers  as  were  expressly  delegated ;  that  the  people  of 
a  State  would  be  affected  only  so  far  as  they  were  restrained 
by  the  instrument  or  their  powers  surrendered  therein  by 
express  delegation.  The  Anti-Federalists  replied  that  while 
the  intent  might  have  been  to  create  a  limited  government, 
the  document  itself  did  not  so  declare ;  that  the  powers  dele¬ 
gated  to  the  Federal  Government  might  be  broadly  con¬ 
strued,  and  through  construction  and  implication,  encroach¬ 
ment  might  take  place  upon  the  sovereign  powers  of  the 
people  of  a  State;  that  amendments  were  necessaiw  to  place 
express  limitations  upon  the  Federal  Government  and  to 
mark  the  boundaries  which  should  separate  Federal  and 
State  authority;  and  therefore  they  insisted  that  a  bill  of 
rights  should  be  incorporated  into  the  instrument,  “bill  of 
rights”  being  the  familiar  term  for  limitations  and  restraints 
upon  government. 

A  definite  limitation  of  Federal  power  to  prevent  en¬ 
croachment  upon  State  power  was  intended  by  all  factions. 


4i 


“This  balance  between  the  national  and  state  governments”, 
said  Mr.  Hamilton,  “ought  to  be  dwelt  on  with  peculiar 
attention,  as  it  is  of  the  utmost  importance.”  That  this 
balance  was  absolutely  essential  in  a  dual  system  was  well 
expressed  by  Mr.  Smith  in  the  New  York  convention : 

“It  is  necessary  that  the  powers  vested  in  govern¬ 
ment  should  be  precisely  defined,  that  the  people  may  be 
able  to  know  whether  it  moves  in  the  circle  of  the  Con¬ 
stitution.  It  is  the  more  necessary  in  governments  like 
the  one  under  examination,  because  Congress  here  is 
to  be  considered  as  only  a  part  of  a  complex  system. 
The  state  governments  are  necessary  for  certain  local 
purposes ;  the  general  government  for  national  purposes. 
The  latter  ought  to  rest  on  the  former,  not  only  in  its 
form,  but  in  its  operations.  It  is  therefore  of  the  high¬ 
est  importance  that  the  line  of  jurisdiction  should  be 
accurately  drawn  ”  El.  Deb.,  Vol.  2,  p.  332. 

In  North  Carolina  Mr.  Iredell,  speaking  to  this  point, 
asserted  the  purpose  accomplished  by  the  enumeration  of 
powers  in  the  instrument: 

“In  my  opinion,  there  ought  to  be  a  line  drawn,  as 
accurately  as  possible,  between  the  power  which  is  given 
and  that  which  is  retained.  In  this  system,  the  line  is 
most  accurately  drawn  by  the  positive  grant  of  the 
powers  of  the  general  government  ”  El.  Deb.,  Vol.  4, 
p.  10. 

And  in  Pennsylvania  Mr.  Wilson  expressed  the  same 
view’ : 

“Sir,  I  think  there  is  another  subject  with  regard  to 
wThich  this  Constitution  deserves  approbation.  I  mean 
the  accuracy  with  which  the  line  is  drawn  between  the 
powers  of  the  general  government  and  those  of  the  par¬ 
ticular  state  governments.  *  *  *  It  is  not  pre¬ 

tended  that  the  line  is  drawn  with  mathematical  pre¬ 
cision;  the  inaccuracy  of  language  must,  to  a  certain 
degree,  prevent  the  accomplishment  of  such  a  desire. 


42 


Whoever  views  the  matter  in  a  true  light,  will  see  that 
the  powers  are  as  minutely  enumerated  and  defined  as 
was  possible.”  El.  Deb.,  Vol.  2,  p.  481. 

In  almost  every  convention,  however,  by  which  the  Con¬ 
stitution  was  adopted,  amendments  to  guard  against  the 
abuse  of  power  were  recommended.  These  amendments  de¬ 
manded  security  against  the  apprehended  encroachments  of 
the  general  government, — not  against  those  of  the  local  gov¬ 
ernments.  Barron  v.  Baltimore ,  7  Peters,  243,  250  (1833). 
In  the  Pennsylvania  Convention,  Mr.  Wilson,  who  had  also 
been  a  member  of  the  Convention  which  drafted  the  Consti¬ 
tution,  said : 

“I  cannot  say,  Mr.  President,  what  were  the  reasons 
of  every  member  of  that  Convention  for  not  adding  a 
bill  of  rights.  I  believe  the  truth  is,  that  such  an  idea 
never  entered  the  mind  of  many  of  them.  I  do  not 
recollect  to  have  heard  the  subject  mentioned  till  within 
about  three  days  of  the  time  of  our  rising;  and  even 
then,  there  was  no  direct  motion  offered  for  any  thing 
of  the  kind.  I  may  be  mistaken  in  this;  but  as  far  as 
my  memory  serves  me,  I  believe  it  was  the  case.  A  propo¬ 
sition  to  adopt  a  measure  that  would  have  supposed  that 
we  were  throwing  into  the  general  government  every 
power  not  expressly  reserved  by  the  people,  would  have 
been  spurned  at,  in  that  house,  with  the  greatest  indigna¬ 
tion.  *  *  *  But  in  a  government  consisting  of 

enumerated  powers,  such  as  is  proposed  for  the  United 
States,  a  bill  of  rights  would  not  only  be  unnecessary, 
but,  in  my  humble  judgment,  highly  imprudent.  In  all 
societies,  there  are  many  powers  and  rights  which  can¬ 
not  be  particularly  enumerated.  A  bill  of  rights  an¬ 
nexed  to  a  constitution  is  an  enumeration  of  the  powers 
reserved.  If  we  attempt  an  enumeration,  everything 
that  is  not  enumerated  is  presumed  to  be  given.  The 
consequence  is,  that  an  imperfect  enumeration  would 
throw  all  implied  power  into  the  scale  of  the  govern- 


43 


ment,  and  the  rights  of  the  people  would  be  rendered 
incomplete.”  El.  Deb.,  Yol.  2,  p.  435. 

The  same  position  was  taken  by  Mr.  Iredell,  Mr.  Mac- 
Laine  and  Mr.  Johnson  in  North  Carolina :  El.  Deb.,  Yol.  4, 
pp.  140,  142,  148,  160,  161 ;  by  Mr.  Pitney  in  South  Carolina  : 
El.  Deb.,  Yol.  4,  p.  315;  by  Governor  Bowdoin  and  Mr.  Par¬ 
sons  in  Massachusetts :  El.  Deb.,  Yol.  2,  pp.  87,  93 ;  by  Gov¬ 
ernor  Randolph,  Mr.  Lee  and  Mr.  Nicholas  in  Yirginia :  El. 
Deb.,  Yol.  3,  pp.  186,  203,  451,  464;  and  by  many  others. 
The  more  cautious  delegates  to  the  State  conventions,  how¬ 
ever,  were  extremely  jealous  of  their  newly  won  inde¬ 
pendence  and  liberty  and  were  not  satisfied  with  the  logic 
of  the  argument ;  and  insisted  that  there  should  be  no  ground 
for  any  future  pretense  for  the  assumption  of  federal  power 
by  implication  and  that  there  should  be  a  clear  and  unequivo¬ 
cal  statement  in  the  instrument  that  all  powers  not  expressly 
granted  were  to  be  retained.  Mr.  Madison,  Federalist,  No. 
45.  In  speaking  to  this  point  Mr.  Spencer,  in  the  North 
Carolina  Convention,  observed : 

“I  know  it  is  said  that  what  is  not  given  up  to  the 
United  States  will  be  retained  by  the  individual  states. 
I  know  it  ought  to  be  so,  and  should  be  so  understood; 
but,  sir,  it  is  not  declared  to  be  so.  In  the  Confedera¬ 
tion  it  is  expressly  declared  that  all  rights  and  powers, 
of  any  kind  whatever,  of  the  several  states,  which  are 
not  given  up  to  the  United  States,  are  expressly  and 
absolutely  retained,  to  be  enjoyed  by  the  states.  There 
ought  to  be  a  bill  of  rights,  in  order  that  those  in  power 
may  not  step  over  the  boundary  between  the  powers  of 
government  and  the  rights  of  the  people,  which  they 
may  do  when  there  is  nothing  to  prevent  them.  They 
may  do  so  without  a  bill  of  rights;  notice  will  not  be 
readily  taken  of  the  encroachments  of  rulers,  and  they 
may  go  a  great  length  before  the  people  are  alarmed. 
Oppression  may  therefore  take  place  by  degrees;  but 


44 


if  there  tcere  express  terms  and  hounds  laid  down,  when 
those  were  passed  by,  the  people  would  take  notice  of 
them,  and  oppressions  would  not  be  carried  on  to  such 
a  length.  I  look  upon  it,  therefore,  that  there  ought  to 
be  something  to  confine  the  power  of  this  government 
within  its  proper  boundaries.”  El.  Deb.,  V ol.  4,  p.  137. 

In  Virginia,  Mr.  Henry  asserted  that  “a  general  posi¬ 
tive  provision  should  be  inserted  in  the  new  system,  securing 
to  the  states  and  the  people  every  right  which  was  not  con¬ 
ceded  to  the  general  government,  and  that  every  implication 
should  be  done  away  with.”  El.  Deb.,  Vol.  3,  p.  150.  In 
Massachusetts,  Mr.  Thompson  inquired:  “Where  is  the  bill 
of  rights  which  shall  check  the  power  of  this  Congress; 
which  shall  say  ‘Thus  far  shall  ye  come  and  no  farther’?” 
El.  Deb.,  Vol.  2,  p.  80.  In  Virginia,  Mr.  Mason  declared  that 
artful  sophistry  and  evasion  could  not  satisfy  him;  that 
he  could  see  no  clear  distinction  between  rights  relinquished 
by  a  positive  grant  and  lost  by  implication;  that  there  was  a 
clause  in  the  Confederation  reserving  to  the  States  respec¬ 
tively  every  power,  jurisdiction  and  right  not  expressly 
delegated  to  the  United  States,  and  that  this  clause  had  never 
been  complained  of,  but  approved  by  all.  He  further 
remarked : 

“We  wish  only  our  rights  to  be  secured.  We  must 
have  such  amendments  as  will  secure  the  liberties  and 
happiness  of  the  people  on  a  plain,  simple  construction, 
not  on  a  doubtful  ground.  We  wish  to  give  the  gov¬ 
ernment  sufficient  energy,  on  real  republican  principles ; 
but  we  wish  to  withhold  such  powers  as  are  not  abso- 
lutelv  necessarv  in  themselves,  but  are  extremelv  dan- 
gerous.  *  *  *  We  ask  ,such  amendments  as  will 

point  out  what  powers  are  reserved  to  the  state  govern¬ 
ment,  and  clearly  discriminate  between  them  and  those 
which  are  given  to  the  general  government ,  so  as  to  pre¬ 
vent  future  disputes  and  clashing  of  interests.  Grant 


45 


us  amendments  like  these,  and  we  will  cheerfully,  with 
our  hands  and  hearts,  unite  with  those  who  advocate  it, 
and  we  will  do  everything  we  can  to  support  and  carry 
it  into  execution.77  El.  Deb.,  Yol.  3,  p.  271. 

The  ratification  of  the  Constitution  in  most  of  the  States 
was  accompanied  by  an  explanatory  statement  that  favor¬ 
able  action  was  taken  in  full  reliance  that  amendments 
would  be  promptly  made  to  meet  the  objections  which  had 
been  raised.  Of  the  numerous  amendments  proposed  by  the 
States,  that  relating  to  the  limitation  of  federal  power  was 
deemed  the  most  essential.  Massachusetts  demanded :  “That 
it  be  explicitly  declared,  that  all  powers  not  expressly  dele¬ 
gated  by  the  aforesaid  Constitution  are  reserved  to  the  sev- 
eral  states,  to  be  by  them  exercised.77  From  Maryland  the 
proposal  read :  “That  Congress  shall  exercise  no  power  but 
what  is  expressly  delegated  by  this  Constitution.77  The  pro¬ 
posal  from  New  York  was :  “That  no  power  shall  be  exer¬ 
cised  by  Congress,  but  such  as  is  expressly  given  by  this  Con¬ 
stitution;  and  all  others,  not  expressly  given,  shall  be  re¬ 
served  to  the  respective  states,  to  be  by  them  exercised.77 
From  North  Carolina :  “That  each  state  in  the  Union  shall 
respectively  retain  every  power,  jurisdiction,  and  right, 
which  is  not  by  this  Constitution  delegated  to  the  Congress 
of  the  United  States,  or  to  the  departments  of  the  federal 
government.77  From  Rhode  Island:  “The  United  States 
shall  guarantee  to  each  state  its  sovereignty,  freedom  and 
independence,  and  every  power,  jurisdiction  and  right  which 
is  not  by  this  Constitution  expressly  delegated  to  the  United 
States.77  The  demand  of  Pennsylvania  was  more  at  length : 

“That  Congress  shall  not  exercise  any  powers  what¬ 
ever,  but  such  as  are  expressly  given  to  that  body  by 
the  Constitution  of  the  United  States;  nor  shall  any 
authority,  power,  or  jurisdiction,  be  assumed  or  exer¬ 
cised  by  the  executive  or  judiciary  departments  of  the 


46 


Union,  under  color  or  pretense  of  construction  or 
fiction;  but  all  the  rights  of  sovereignty,  which  are  not 
by  the  said  Constitution  expressly  and  plainly  vested 
in  the  Congress,  shall  be  deemed  to  remain  with,  and 
shall  be  exercised  by,  the  several  states  in  the  Union, 
according  to  their  respective  constitutions;  and  that 
every  reserve  of  the  rights  of  individuals,  made  by  the 
several  constitutions  of  the  states  in  the  Union,  to  the 
citizens  and  inhabitants  of  each  state  respectively,  shall  ‘ 
remain  inviolate,  except  so  far  as  they  are  expressly  and 
manifestly  yielded  or  narrowed  by  the  national  Consti¬ 
tution.” 

At  the  First  Session  of  Congress  under  the  new  govern¬ 
ment  Mr.  Madison  brought  forward  proposals  of  amend¬ 
ments  to  the  Constitution  in  accordance  with  the  assurance 
which  he  had  given  in  the  Virginia  Convention.  He  thus 
carried  out  a  tacit  agreement  through  which  ratification  in 
several  of  the  States  had  been  procured.  In  bringing  for¬ 
ward  these  amendments,  he  said : 

“I  confess  it  has  already  appeared  to  many,  in  point 
of  candor  and  good  faith,  as  well  as  policy,  to  be  incum¬ 
bent  upon  the  first  Legislature  of  the  United  States,  at 
their  first  session,  to  make  such  alterations  in  the  Con¬ 
stitution  as  will  give  satisfaction,  without  injuring  or 
destroying  any  of  its  vital  principles.”  *  *  * 

“I  find,  from  looking  into  the  amendments  proposed 
by  the  State  conventions,  that  several  are  particularly 
anxious  that  it  should  be  declared  in  the  constitution, 
that  the  powers  not  therein  delegated  should  be  reserved 
to  the  several  States.  Perhaps  words  which  may  define 
this  more  precisely  than  the  whole  of  the  instrument 
now  does ,  may  he  considered  as  superfluous.  I  admit 
they  may  he  deemed  unnecessary ;  hut  there  can  he  no 
harm  in  making  such  a  declaration,  if  gentlemen  will 
alloic  that  the  fact  is  as  stated.  /  am  sure  I  understand 
it  so,  and  do  therefore  propose  it.”  Gales  &  Seaton's 
Debates,  A'ol.  1,  pp.  458,  733. 


47 


Under  the  direction  of  Mr.  Madison  twelve  amendments 
were  agreed  upon  and  proposed  to  the  Legislatures  of  the 
several  States,  the  preamble  of  the  joint  resolution  of  sub¬ 
mission  reading : 

“The  Conventions  of  a  number  of  the  States  having 
at  the  time  of  their  adopting  the  Constitution,  expressed 
a  desire,  in  order  to  prevent  misconstruction  or  abuse  of 
its  potvers ,  that  further  declaratory  and  restrictive 
clauses  should  be  added;  And  as  extending  the  ground 
of  public  confidence  in  the  government,  will  best  ensure 
the  beneficent  ends  of  its  institution :  Resolved,  etc.” 

Of  the  twelve  proposals  submitted  ten  were  ratified  and 
these  ten  Amendments  have  ever  been  regarded  as  virtually  a 
part  of  the  original  document  and  they  have  always  been 
construed  as  declaratory  of  its  meaning  and  as  imposing  a 
definite  limitation  upon  the  construction  of  its  powers.  The 
Federal  Government  therefore  is  limited  not  only  by  the 
enumeration  of  the  particular  powers  delegated,  but  also  by 
the  express  limitations  contained  in  the  first  ten  Amend¬ 
ments. 

Mr.  Justice  Storv  in  Martin  v.  Hunter’s  Lessee,  1  Wheat. 
304,  325  (1816)  : 

“It  is  perfectly  clear  that  the  sovereign  powers 
vested  in  the  state  governments,  by  their  respective  con¬ 
stitutions,  remained  unaltered  and  unimpaired,  except 
so  far  as  they  were  granted  to  the  government  of  the 
United  States. 

“These  deductions  do  not  rest  upon  general  reason¬ 
ing,  plain  and  obvious  as  they  seem  to  be.  They  have 
been  positively  recognized  by  one  of  the  articles  in 
amendment  of  the  constitution,  which  declares,  that  The 
powers  not  delegated  to  the  United  States  by  the  con¬ 
stitution,  nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively,  or  to  the  people.’ 


48 


“The  government,  then,  of  the  United  States  can 
claim  no  powers  which  are  not  granted  to  it  by  the 
constitution,  and  the  'powers  actually  granted ,  must  he 
such  as  are  expressly  given,  or  given  by  necessary  impli¬ 
cation” 

Mr.  Chief  Justice  Marshall  in  McCulloch  v.  Maryland, 
4  Wheat.  316,  405  (1819)  : 

“This  government  is  acknowledged  by  all  to  be  one 
of  enumerated  powers.  The  principle,  that  it  can  exer¬ 
cise  only  the  powers  granted  to  it,  would  seem  too 
apparent  to  have  required  to  be  enforced  by  all  those 
arguments  which  its  enlightened  friends,  while  it  was 
depending  before  the  people,  found  it  necessary  to  urge. 
That  principle  is  now  universally  admitted  ” 


(C)  The  Federal  and  State  Governments  are  Inde¬ 
pendent  Sovereignties,  Have  Distinct  and  Sepa¬ 
rate  Jurisdictions  and  Move  in  Entirely  Dif¬ 
ferent  Spheres. 

The  constitutional  limitations  having  been  definitely 
established,  either  in  the  instrument  itself  or  by  Amend- 
ments,  the  Federal  and  State  governments  have  been  re¬ 
garded  from  the  beginning  as  distinct  and  separate.  Their 
powers  are  for  different  purposes.  Their  territorial  or 
objective  jurisdictions  are  well  defined.  They  move  in  en¬ 
tirely  different  spheres.  Each  in  its  sphere  is  independent 
and  sovereign.  The  Federal  Government  derives  its  power 
from  the  people  of  the  United  States.  A  State  government 
derives  its  power  from  the  sovereign  people  of  the  State.  As 
Mr.  Justice  Iredell,  in  Chisholm  v.  Georgia,  2  Dali.  419,  448 
(1793),  remarked:  “A  State  does  not  owe  its  origin  to  the 
Government  of  the  United  States,  in  the  highest  or  in  any 


49 


of  its  branches.  It  was  in  existence  before  it.  It  derives  its 
authority  from  the  same  pure  and  sacred  source  as  itself : 
the  voluntary  and  deliberate  choice  of  the  people.”  He  had 
previously  stated  in  the  same  case  (p.  435)  :  “Every  State 
in  the  Union  in  every  instance  Avhere  its  sovereignty  has  not 
been  delegated  to  the  United  States,  I  consider  to  be  as  com¬ 
pletely  sovereign,  as  the  United  States  are  in  respect  to  the 
powers  surrendered.  The  United  States  are  sovereign  as  to 
all  the  powers  of  government  actually  surrendered.  Each 
State  in  the  Union  is  sovereign  as  to  all  the  powers  reserved. 
It  must  necessarily  he  so,  because  the  United  States  have 
no  claim  to  any  authority  hut  such  as  the  States  have  sur¬ 
rendered  to  them.  Of  course  the  part  not  surrendered  must 
remain  as  it  did  before.” 

Mr.  Chief  Justice  Marshall,  in  McCulloch  v.  Maryland , 
4  Wheat.  316,  410  (1819)  : 

“In  America,  the  powers  of  sovereignty  are  divided 
between  the  government  of  the  Union,  and  those  of  the 
States.  They  are  each  sovereign  with  respect  to  the 
objects  committed  to  it,  and  neither  sovereign  with 
respect  to  the  objects  committed  to  the  other” 

Mr.  Chief  Justice  Taney,  in  Ableman  v.  Booth ,  21  How. 
506,  516  (1858) : 

“The  powers  of  the  General  Government,  and  of 
the  State,  although  both  exist  and  are  exercised  within 
the  same  territorial  limits,  are  yet  separate  and  dis¬ 
tinct  sovereignties,  acting  separately  and  independently 
of  each  other,  within  their  respective  spheres.  And  the 
sphere  of  action  appropriated  to  the  United  States  is  as 
far  beyond  the  reach  of  the  judicial  process  issued  by  a 
State  judge  or  a  State  court,  as  if  the  line  of  division 
was  traced  by  landmarks  and  monuments  visible  to  the 
eye.” 


50 


Mr.  Justice  Bradley,  in  Claflin  v.  Houseman ,  93  U.  S. 
130,  137  (1870)  : 

“It  is  true,  the  sovereignties  are  distinct,  and 
neither  can  interfere  with  the  proper  jurisdiction  of  the 
other,  as  was  so  clearly  shown  by  Chief  Justice  Taney, 
in  the  case  of  Ableman  v.  Booth,  21  How.  506.” 

Mr.  Justice  Xelson,  in  Collector  v.  Day,  11  Wall.  113, 
124  (1870)  : 

“It  is  a  familiar  rule  of  construction  of  the  Con¬ 
stitution  of  the  Union,  that  the  sovereign  powers  vested 
in  the  State  governments  by  their  respective  constitu¬ 
tions,  remained  unaltered  and  unimpaired,  except  so 
far  as  they  were  granted  to  the  government  of  the  United 
States.  That  the  intention  of  the  framers  of  the  Con¬ 
stitution  in  this  respect  might  not  be  misunderstood, 
this  rule  of  interpretation  is  expressly  declared  in 
the  tenth  article  of  the  amendments,  namelv:  ‘The 
powers  not  delegated  to  the  United  States  are  reserved 
to  the  States  respectively,  or,  to  the  people.’  The  gov¬ 
ernment  of  the  United  States,  therefore,  can  claim  no 
powers  which  are  not  granted  to  it  by  the  Constitution, 
and  the  powers  actually  granted  must  be  such  as  are 
expressly  given,  or  given  by  necessary  implication. 

“The  general  government,  and  the  States,  although 
both  exist  within  the  same  territorial  limits,  are  sepa¬ 
rate  and  distinct  sovereignties,  acting  separately  and 
independently  of  each  other,  within  their  respective 
spheres.  The  former  in  its  appropriate  sphere  is  su¬ 
preme;  but  the  States  within  the  limits  of  their  powers 
not  granted,  or  in  the  language  of  the  tenth  amendment, 
‘reserved,’  are  as  independent  of  the  general  government 
as  that  government  within  its  sphere  is  independent  of 
the  States.” 

Mr.  Justice  Waite,  in  United  States  v.  Cruikshank,  92 
U.  S.  542,  550  (1875)  : 

“The  people  of  the  United  States  resident  within 


5i 


any  State  are  subject  to  two  governments:  one  State 
and  the  other  National;  but  there  need  be  no  conflict 
between  the  two.  The  powers  which  one  possesses ,  the 
other  does  not.  They  are  established  for  different  pur¬ 
poses,  and  have  separate  jurisdictions.  Together  they 
make  one  whole,  and  furnish  the  people  of  the  United 
States  with  a  complete  government,  ample  for  the  pro¬ 
tection  of  all  their  rights  at  home  and  abroad.” 

Mr.  Justice  Bradley,  in  Claflin  v.  Houseman,  93  U.  S. 
130,  136  (1876) : 

“Every  citizen  of  a  State  is  a  subject  of  two  distinct 
sovereignties,  having  concurrent  jurisdiction  in  the 
State, — concurrent  as  to  place  and  persons,  though  dis¬ 
tinct  as  to  subject  matter.” 

The  Federal  and  State  governments  are  not  only  dis¬ 
tinct  and  separate  in  their  objects  and  in  the  operation  of 
their  powers,  but  each  has  its  own  citizenship,  its  own  elec¬ 
torate,  its  own  agencies,  and  each  is  limited  to  its  own 
powers  and  jurisdiction  in  securing  and  protecting  the 
rights  and  privileges  of  its  own  people.  In  United  States  v. 
Cruikshank,  supra,  Mr.  Justice  Waite  clearly  pointed  out 
the  limitations  upon  the  operation  of  each  government,  de¬ 
termined  by  their  respective  powers  and  jurisdiction.  He 
there  said  (p.  549)  : 

“We  have  in  our  political  system  a  Government  of 
the  United  States  and  a  government  of  each  of  the 
several  States.  Each  one  of  these  governments  is  dis¬ 
tinct  from  the  others,  and  each  has  citizens  of  its  own 
who  owe  it  allegiance,  and  whose  rights,  within  its 
jurisdiction,  it  must  protect.  The  same  person  may  be 
at  the  same  time  a  citizen  of  the  United  States  and  a 
citizen  of  a  State,  but  his  rights  of  citizenship  under  one 
of  these  governments  will  be  different  from  those  he  has 
under  the  other.  Slaughter-house  Cases,  16  Wall.  74. 

“Citizens  are  the  members  of  the  political  com- 


52 


munity  to  which  they  belong.  They  are  the  people  who 
compose  the  community,  and  who,  in  their  associated 
capacity,  have  established  or  submitted  themselves  to 
the  dominion  of  a  government  for  the  promotion  of  their 
general  welfare  and  the  protection  of  their  individual 
as  well  as  their  collective  rights.  In  the  formation  of 
a  government,  the  people  may  confer  upon  it  such 
powers  as  they  choose.  The  government,  when  so 
formed,  may,  and  when  called  upon  should,  exercise  all 
the  powers  it  has  for  the  protection  of  the  rights  of  its 
citizens  and  the  people  within  its  jurisdiction ;  but  it 
can  exercise  no  other.  The  duty  of  a  government  to 
afford  protection  is  limited  always  by  the  power  it  pos¬ 
sesses  for  that  purpose.  *  *  * 

“Within  the  scope  of  its  federal  powers,  as  enumer¬ 
ated  and  defined,  it  is  supreme  and  above  the  States ; 
but  beyond,  it  has  no  existence.  It  was  erected  for  spe¬ 
cial  purposes,  and  endowed  with  all  the  powers  neces¬ 
sary  for  its  own  preservation  and  the  accomplishment 
of  the  ends  its  people  had  in  view.  It  can  neither  grant 
nor  secure  to  its  citizens  any  right  or  privilege  not 
expressly  or  by  implication  placed  under  its  jurisdic¬ 
tion ” 


(D)  The  Police  Power  Exclusively  in  the  States. 

“By  the  public  police  and  economy,”  says  Blackstone, 
“I  mean  the  due  regulation  and  domestic  order  of  the  king¬ 
dom,  whereby  the  individuals  of  the  State,  like  members  of 
a  well  governed  family,  are  bound  to  conform  their  general 
behavior  to  the  rules  of  propriety,  good  neighborhood  and 
good  manners,  and  to  be  decent,  industrious  and  inoffensive 
in  their  respective  stations.”  Commentaries,  Sharswood's 
Ed.,  Vol.  2,  Bk.  4,  p.  1G2.  The  police  power  is  inseparable 
from  territorial  sovereignty  and  through  that  power  a  State 


53 


administers  the  common  law  with  such  modifications  as  the 
changing  social  conditions  of  the  time  demand.  The  com¬ 
mon  law  was  never  incorporated  in  the  Federal  Constitu¬ 
tion  nor  its  administration  intrusted  to  federal  authority. 
Mr.  Madison,  the  Father  of  the  Constitution,  in  his  elaborate 
Report  on  the  Virginia  Resolutions,  said : 

•‘From  the  review  thus  taken  of  the  situation  of  the 
American  colonies  prior  to  their  independence;  of  the 

effect  of  this  event  on  their  situation ;  of  the  nature  and 

✓ 

import  of  the  Articles  of  Confederation;  of  the  true 
meaning  of  the  passage  in  the  existing  Constitution 
from  which  the  common  law  has  been  deduced;  of  the 
difficulties  and  uncertainties  incident  to  the  doctrine; 
and  of  its  vast  consequences  in  extending  the  powers  of 
the  federal  government,  and  in  superseding  the  authori¬ 
ties  of  the  state  governments, — the  committee  feel  the 
utmost  confidence  in  concluding  that  the  common  law 
never  was,  nor,  by  any  fair  construction  ever  can  be 
deemed  a  law  for  the  American  people  as  one  commu¬ 
nity;  and  they  indulge  the  strongest  expectation  that 
the  same  conclusion  will  be  finally  drawn  by  all  candid 
and  accurate  inquirers  into  the  subject.  It  is,  indeed, 
distressing  to  reflect  that  it  ever  should  have  been  made 
a  question,  whether  the  Constitution,  on  the  whole  face 
of  which  is  seen  so  much  labor  to  enumerate  and  define 
the  several  objects  of  federal  power,  could  intend  to  in¬ 
troduce  in  the  lump,  in  an  indirect  manner,  and  by  a 
forced  construction  of  a  few  phrases,  the  vast  and  multi¬ 
farious  jurisdiction  involved  in  the  common  law — a  law 
filling  so  many  ample  volumes ;  a  law  overspreading  the 
entire  field  of  legislation ;  and  a  law  that  would  sap  the 
foundation  of  the  Constitution  as  a  system  of  limited 
and  specified  powers.  A  severer  reproach  could  not,  in 
the  opinion  of  the  committee,  be  thrown  on  the  Consti¬ 
tution,  on  those  who  framed,  or  on  those  who  established 
it,  than  such  a  supposition  would  throw  on  them.”  El. 
Deb.,  Vol.  4,  p.  56G. 


54 


As  to  the  nature  of  the  police  power,  Mr.  Justice  Miller, 
in  the  Slaughter-House  Cases,  16  Wall.  36,  62  (1872),  re¬ 
marked  : 

“This  is  called  the  police  power;  and  it  is  declared 
by  Chief  .Justice  Shaw  that  it  is  much  easier  to  perceive 
and  realize  the  existence  and  sources  of  it  than  to  mark 
its  boundaries,  or  prescribe  limits  to  its  exercise.  Com. 
v.  Alger ,  7  Cush.  84. 

“This  power  is,  and  must  be  from  its  very  nature, 
incapable  of  any  very  exact  definition  or  limitation. 
Upon  it  depends  the  security  of  social  order,  the  life 
and  health  of  the  citizen,  the  comfort  of  an  existence  in 
a  thickly  populated  community,  the  enjoyment  of  pri¬ 
vate  and  social  life,  and  the  beneficial  use  of  property. 

“  ‘It  extends/  says  another  eminent  judge,  ‘to  the 
protection  of  the  lives,  limbs,  health,  comfort  and  quiet 
of  all  persons,  and  the  protection  of  all  property  within 
the  State  ;•  *  *  *  and  persons  and  property  are  sub¬ 

jected  to  all  kinds  of  restraints  and  burdens  in  order  to 
secure  the  general  comfort,  health  and  prosperity  of  the 
State.  Of  the  perfect  right  of  the  Legislature  to  do  this 
no  question  ever  was,  or,  upon  acknowledged  general 
principles,  ever  can  be  made,  so  far  as  natural  persons 
are  concerned.’  Thorpe  v.  Butt.  &  B.  R.  R.  Co .,  27  Yt. 
149.  *  *  * 

“In  Gibbons  v.  Ogden,  9  Wheat.,  203,  Chief  Justice 
Marshall,  speaking  of  inspection  laws  passed  by  the 
States,  says :  ‘They  form  a  portion  of  that  immense 
mass  of  legislation  which  controls  everything  within  the 
territory  of  a  State  not  surrendered  to  the  General  Gov- 
eminent — all  which  can  be  most  advantageously  admin¬ 
istered  by  the  States  themselves.  Inspection  laws,  quar¬ 
antine  laws,  health  laws  of  every  description,  as  well  as 
laws  for  regulating  the  internal  commerce  of  a  State, 
and  those  whicli  respect  turnpike  roads,  ferries,  etc.,  are 
component  parts.  ATo  direct  general  power  over  these 
objects  is  granted  to  Congress ;  and  consequently  they 
remain  subject  to  state  legislation/ 


I 


55 

“The  exclusive  authority  of  state  legislation  over 
this  subject  is  strikingly  illustrated  in  the  case  of  N.  Y. 
v.  Miln,  11  Pet.  102.  *  *  *  To  the  same  purpose  are 

the  recent  cases  of  the  The  License  Tax ,  5  Wall.  471, 
and  U.  S.  v.  Dewitt,  9  Wall.  41.” 

Another  illuminating  definition  of  this  power  is  given 
by  Mr.  Justice  Gray,  in  Leisy  v.  Hardin,  135  U.  S.  100,  127 
(1889)  : 

“By  the  Tenth  Amendment,  The  powers  not  dele¬ 
gated  to  the  United  States  by  the  Constitution,  nor  pro¬ 
hibited  bv  it  to  the  States,  are  reserved  to  the  States  re- 
spectively,  or  to  the  people/ 

“Among  the  powers  thus  reserved  to  the  several 
States  is  what  is  commonly  called  the  police  power — 
that  inherent  and  necessary  power,  essential  to  the  very 
existence  of  civil  society,  and  the  safeguard  of  the  in¬ 
habitants  of  the  State  against  disorder,  disease,  poverty 
and  crime. 

“  ‘The  police  power  belonging  to  the  States  in  virtue 
of  their  general  sovereignty/  says  Mr.  Justice  Story,  de¬ 
livering  the  judgment  of  this  court,  ‘extends  over  all 
subjects  within  the  territorial  limits  of  the  States,  and 
has  never  been  conceded  to  the  United  States.  Prigg  v. 
Pennsylvania,  16  Pet.  539,  625.  This  is  well  illustrated 
by  the  recent  adjudications  that  a  statute  prohibiting 
the  sale  of  illuminating  oils  below  a  certain  fire-test  is 
beyond  the  constitutional  power  of  Congress  to  enact, 
except  so  far  as  it  has  effect  within  the  United  States 
(as,  for  instance,  in  the  District  of  Columbia)  and  with¬ 
out  the  limits  of  any  State;  but  that  it  is  within  the 
constitutional  power  of  a  State  to  pass  such  a  statute, 
even  as  to  oils  manufactured  under  letters-patent  from 
the  United  States.  United  States  v.  Dewitt,  9  Wall. 
41 ;  Patterson  v.  Kentucky,  97  U.  S.  501. 

“The  police  power  includes  all  measures  for  the  pro¬ 
tection  of  the  life,  health,  the  property  and  the  wel¬ 
fare  of  the  inhabitants,  and  for  the  promotion  of  good 
order  and  the  public  morals.  It  covers  the  suppression 


56 


\ 


of  nuisances,  whether  injurious  to  the  public  health, 
like  unwholesome  trades,  or  to  the  public  morals,  like 
gambling  houses  and  lottery  tickets.  Slaughter-House 
Cases ,  1G  Wall.  36,  62,  87 ;  Northwestern  Fertilizing  Co. 
v.  Hyde  Park ,  97  17.  S.  659;  Phalen  v.  Virginia ,  8  How. 
163,  168;  Stone  V.  Mississippi ,  101  IT.  S.  814. 

“This  power,  being  essential  to  the  maintenance  of 
the  authority  of  local  government,  and  to  the  safety  and 
welfare  of  the  people,  is  inalienable.  As  was  said  by 
Chief  Justice  Waite,  referring  to  earlier  decisions  to  the 
same  effect,  (No  Legislature  can  bargain  away  the  pub¬ 
lic  health  or  the  public  morals.  The  people  themselves 
cannot  do  it,  much  less  their  servants.  The  supervision 
of  both  these  subjects  of  governmental  power  is  continu¬ 
ing  in  its  nature ,  and  they  are  to  be  dealt  with  as  the 
special  exigencies  of  the  moment  may  require.  Govern¬ 
ment  is  organized  with  a  view  to  their  preservation ,  and 
cannot  divest  itself  of  the  power  to  provide  for  them. 
For  this  purpose  the  largest  legislative  discretion  is 
allowed ,  and  the  discretion  cannot  be  parted  with  any 
more  than  the  poiver  itself .’  Stone  v.  Mississippi ,  101 
U.  S.  814,  819;  Butchers  Union  Co.  v.  Crescent  City  Co., 
Ill  U.  S.  746,  753;  New  Orleans  G.  Co.  v.  Louisiana  L. 
&  H.  Co .,  115  U.  S.  650,  672;  New  Orleans  v.  Houston, 
119  U.  S.  265,  275.” 


“The  police  of  a  State,”  says  Judge  Cooley,  “embraces 
its  whole  system  of  internal  regulation,  by  which  the  State 
seeks  not  only  to  preserve  the  public  order  and  to  prevent 
offences  against  the  State,  but  also  to  establish  for  the  inter¬ 
course  of  citizens  with  citizens  those  rules  of  good  manners 
and  good  neighborhood  which  are  calculated  to  prevent  a 
conflict  of  rights  and  to  insure  to  each  the  uninterrupted 
enjoyment  of  his  own  so  far  as  is  reasonably  consistent  with 
a  like  enjoyment  of  rights  by  others.”  The  same  author 
adds :  “In  the  American  constitutional  system,  the  power 
to  establish  the  ordinary  regulations  of  police  has  been  left 


57 


to  individual  states,  and  it  cannot  be  taken  from  them,  either 
wholly  or  in  part,  and  exercised  under  legislation  of  Con¬ 
gress.  Neither  can  the  national  government  through  any  of 
its  departments  or  officers ,  assume  any  supervision  of  the 
police  regulations  of  the  States.  U.  S.  v.  Dewitt ,  9  Wall. 
41 ;  U.  S.  v.  Reese,  92  U.  S.  214 ;  U.  S.  v.  Cruikshank,  92  U.  S. 
542;  Keller  v.  U.  S.,  213  U.  S.  138.”  Cooley,  Const.  Lim., 
7th  Ed.,  pp.  829,  831.  v 

This  police  power  of  a  State  has  been  particularly  sus¬ 
tained  in  its  application  to  the  manufacture,  sale  and  trans¬ 
portation  of  the  subject  matter  of  the  so-called  Amendment, 
and  it  has  been  repeatedly  held  to  be  an  absolute  and  exclu¬ 
sive  power  in  the  State. 

Crane  v.  Campbell,  245  U.  S.  304  (1917). 

Purity  Extract  Co.  v.  Lynch,  226  U.  S.  192  (1912). 

Crowley  v.  Christensen,  137  U.  S.  86  (1890). 

Kidd  v.  Pearson,  128  U.  S.  1  (1888). 

Mugler  v.  Kansas,  123  U.  S.  623  (1887). 

Beer  Co.  v.  Mass.,  97  U.  S.  25  (1878). 

Bartemeyer  v.  Iowa ,  18  Wall.  129  (1874). 

Mr.  Chief  Justice  Chase,  in  speaking  of  the  internal 
commerce  and  domestic  trade  of  a  State,  in  the  License  Tax 
Cases,  5  Wrall.  462,  470  (1866),  said: 

“Over  this  commerce  and  trade  (the  internal  com¬ 
merce  and  domestic  trade  of  the  States)  Congress  has 
no  power  of  regulation,  nor  any  direct  control.  >  This 
power  belongs  exclusively  to  the  States.  No  interfer¬ 
ence  by  Congress  with  the  business  of  citizens  transacted 
within  a  State  is  warranted  by  the  Constitution,  except 
such  as  is  strictly  incidental  to  the  exercise  of  powers 
clearly  granted  to  the  Legislature.  The  power  to 
authorize  a  business  within  a  State  is  plainly  repugnant 
to  the  exclusive  power  of  the  State  over  the  same  sub- 
feet.” 


58 


Mr.  Justice  Matthews,  in  Bowman  v.  Chicago  &  North - 
western  Railway  Co.,  125  U.  S.  465,  493  (1888)  : 

“It  is  conceded,  as  we  have  already  shown,  that  for 
the  purposes  of  its  policy  a  State  has  legislative  control, 
exclusive  of  Congress,  within  its  territory  of  all  per¬ 
sons,  things,  and  transactions  of  strictly  internal  con¬ 
cern.  For  the  purpose  of  protecting  its  people  against 
the  evils  of  intemperance  it  has  the  right  to  prohibit 
the  manufacture  within  its  limits  of  intoxicating 
liquors;  it  may  also  prohibit  all  domestic  commerce  in 
them  between  its  own  inhabitants,  whether  the  articles 
are  introduced  from  other  States  or  from  foreign  coun¬ 
tries  ;  it  may  punish  those  who  sell  them  in  violation  of 
its  laws;  it  may  adopt  any  measures  tending,  even  indi¬ 
rectly  and  remotely,  to  make  the  policy  effective  until 
it  passes  the  line  of  power  delegated  to  Congress  under 
the  Constitution. 

Mr.  Justice  Lamar,  in  Kidd  v.  Pearson,  128  IT.  S.  1,  23 
<1888) : 

“We  have  seen  that  whether  a  State  in  the  exercise 
of  its  undisputed  power  of  local  administration,  can 
enact  a  Statute  prohibiting  within  its  limits  the  manu¬ 
facture  of  intoxicating  liquors,  except  for  certain  pur¬ 
poses,  is  not  longer  an  open  question  before  this  Court.” 

In  Leisy  v.  Hardin,  135  U.  S.  100,  122  (1889),  Mr.  Chief 
Justice  Fuller,  in  delivering  the  opinion  of  the  Court,  re¬ 
marked  : 

“These  decisions  rest  upon  the  undoubted  right  of 
the  States  of  the  Union  to  control  their  purely  internal 
affairs,  in  doing  which  they  exercise  powers  not  sur¬ 
rendered  to  the  national  government.  *  *  * 

“Undoubtedly,  it  is  for  the  legislative  branch  of  the 
state  governments  to  determine  whether  the  manufac¬ 
ture  of  particular  articles  of  traffic,  or  the  sale  of  such 
articles,  will  injuriously  affect  the  public,  and  it  is  not 
for  Congress  to  determine  what  measures  a  State  may 


59 


properly  adopt  as  appropriate  or  needful  for  the  protec¬ 
tion  of  the  public  morals,  the  public  health  or  the  public 
safety.  *  *  *” 

Mr.  Justice  Gray,  in  dissenting  in  Leisy  v.  Hardin, 
supra ,  but  not  with  reference  to  the  principle  here  discussed, 
said : 

“The  power  of  regulating  or  prohibiting  the  manu¬ 
facture  and  sale  of  intoxicating  liquors  appropriately 
belongs,  as  a  branch  of  the  police  power,  to  the  Legisla¬ 
tures  of  the  sevem  1  States,  and  can  be  judiciously  and 
effectively  exercised  by  them  alone ,  according  to  their 
views  of  public  policy  and  local  needs ;  and  cannot  prac¬ 
tically,  if  it  can  constitutionally,  be  wielded  by  Congress 
as  part  of  a  national  and  uniform  system” 

Mr.  Justice  Brewer,  in  In  re  Heff ,  197  U.  S.  489,  505 
(1905),  speaking  for  the  Court,  remarked: 

“The  general  police  power  is  reserved  to  the  States, 
subject,  however,  to  the  limitation  that  in  its  exercise 
the  state  may  not  trespass  upon  the  rights  and  powers 
vested  in  the  general  government.  The  regulation  of 
the  sale  of  intoxicating  liquors  is  one  of  the  most  com¬ 
mon  and  significant  exercises  of  the  police  power.  And 
so  far  as  it  is  an  exercise  of  the  police  power  it  is  within 
the  domain  of  State  jurisdiction” 


(E)  Xo  Police  Power  in  Federal  Government. 

Although  the  power  of  Congress  to  regulate  commerce 
among  the  States,  and  the  power  of  the  States  to  regulate 
their  purely  domestic  affairs,  are  distinct  powers,  which,  in 
their  application,  may  at  times  bear  upon  the  same  subject, 
no  collision  that  would  disturb  the  harmony  of  the  national 
and  state  governments,  or  produce  any  conflict  between  the 
two  governments  in  the  exercise  of  their  respective  powers, 


6o 


need  occur.  There  is  always  a  division  line  between  a  Fed¬ 
eral  and  a  State  power.  As  Mr.  Chief  Justice  Marshall  said 
in  Gibbons  v.  Ogden ,  supra  : 

“All  experience  shows  that  the  same  measures,  or 
measures  scarcely  distinguishable  from  each  other,  may 
flow  from  distinct  powers;  but  this  does  not  prove  that 
the  powers  themselves  are  identical.  Although  the 
means  used  in  their  execution  may  sometimes  approach 
each  other  so  nearly  as  to  be  confounded,  there  are  other 
situations  in  which  they  are  sufficiently  distinct  to  estab¬ 
lish  their  individuality.” 

Thus  Congress  under  its  power  to  regulate  commerce 
between  the  States  has  enacted : 

(a)  The  Wilson  Act  (4  Fed.  Stat.  Ann.  2d  ed.,  p. 
585;  U.  S.  Statutes,  August  8,  1890),  sustained  in  In  re 
Rahrer,  140  U.  S.  545; 

(b)  The  Webb-Kenyon  Act  (1914  Sup.  to  Fed. 
Stats.  Ann.,  p.  208;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  593; 
March  1,  1913),  sustained  in  James  Clark  Distilling 
Co.  v.  Western  Maryland  R.  Co.,  242  U.  S.  311;  and 

(c)  The  Reed  Amendment  (U.  S.  Fed.  Stat.  Ann. 
1918  Supp.,  p.  394;  Sec.  5  of  Act  of  March  3,  1917.  See 
McAdams  v.  Wells  Fargo  &  Co.,  249  Fed.  175;  U.  S.  v. 
Mitchell,  245  Fed.  G01. 

% 

This  legislation  could  only  be  supported  under  the 
power  of  Congress  to  regulate  interstate  commerce.  In  each 
case  there  was  a  clear  intent  to  recognize  the  right  of  the 
State  to  exercise  its  police  power  to  the  full  and  to  furnish 
every  federal  assistance  to  that  end.  But  Congress  has  no 
police  power  and  may  not  regulate  the  subject  matter.  Its 
legislation  may  effect  the  subject  matter  indirectly  through 
its  power  over  interstate  commerce.  But  the  police  power 
resides  with  the  States  alone,  as  Mr.  Justice  Harlan  re- 


6i 


marked  in  the  case  of  Missouri ,  Kansas  &  Texas  Hallway  Co. 
v.  Haber ,  169  U.  S.  613,  628  (1898)  : 

“This  Court,  while  sustaining  the  power  of  Con¬ 
gress  to  regulate  commerce  among  the  States,  has  stead¬ 
ily  adhered  to  the  principle  that  the  states  possess,  be¬ 
cause  they  have  never  surrendered,  the  power  to  protect 
the  public  health,  the  public  morals,  and  the  public 
safety,  by  any  legislation  appropriate  to  that  end  which 
does  not  encroach  upon  rights  guaranteed  by  the 
national  Constitution,  nor  come  in  conflict  with  Acts  of 
Congress  passed  in  pursuance  of  that  instrument.” 

In  the  case  of  In  re  Heff ,  197  U.  S.  489  (1905),  where  it 
was  held  that  Congress  could  not  penalize  the  sale  of  liquor 
within  a  State  to  an  Indian  who  had  acquired  the  privilege 
of  State  citizenship,  Mr.  Justice  Brewer,  in  delivering  the 
opinion  of  the  Court,  said : 

“It  will  not  be  doubted  that  an  Act  of  Congress  at¬ 
tempting  as  a  police  regulation  to  punish  the  sale  of 
liquor  by  one  citizen  of  a  state  to  another  within  the 
territorial  limits  of  that  state  would  be  an  invasion  of 
the  state’s  jurisdiction,  and  could  not  be  sustained ;  and 
it  would  be  immaterial  what  the  antecedent  status  of 
either  buyer  or  seller  was.  There  is  in  these  police  mat¬ 
ters  no  such  thing  as  a  divided  sovereignty.  Jurisdic¬ 
tion  is  vested  entirely  in  either  the  state  or  the  nation, 
and  not  divided  between  the  two  ”  p.  505. 

It  is  beyond  dispute  that  the  police  poAver  is  not  one  of 
the  enumerated  powers  delegated  to  the  Federal  Government 
by  the  Constitution.  It  is  a  poAver  inherent  in  the  State 
which  has  never  been  surrendered.  It  is  indispensable  to 
community  government  and  inseparable  from  territorial 
sovereignty.  In  the  recent  case  of  Hamilton  Y.  Kentucky  D. 
&  W.  Co.,  (Dec.  1919),  Mr.  Justice  Brandeis  said: 

“That  the  United  States  lacks  the  police  power  and 


62 


that  this  was  reserved  to  the  States  by  the  Tenth 
Amendment  is  true:’ 

Keller  v.  United  States,  213  IT.  S.  138  (1908)  ; 

United  States  v.  Dewitt,  9  Wall.  41  (1870). 


(7)  Article  V  Should  be  Construed  as  Consistent  with 

These  Principles. 

The  foregoing  principles,  which  have  been  deduced  by 
this  Court  from  the  origin  and  nature  of  the  Constitution 
and  the  relations  which  were  established  thereunder  between 
the  Federal  and  State  governments,  can  no  longer  be  re¬ 
garded  as  permanent  if  the  doctrine  which  is  advanced  by  the 
defendants  in  this  cause  be  accepted  as  correct.  The  first 
ten  Amendments  were  positive  limitations  upon  all  federal 
powers  under  the  Constitution.  If  the  amending  function 
in  Article  Y  is  not  subject  to  the  limitation  of  the  Tenth 
Amendment,  it  is  no  more  subject  to  the  limitations  of  the 
first  nine  Amendments.  Of  what  value  then  are  all  those 
rights,  secured  to  the  individual  under  the  constitution  of  a 
State?  Rhode  Island  first  established  the  principle  of  re¬ 
ligious  liberty,  and  that  principle  may  be  threatened.  Under 
the  guise  of  amending  the  Constitution,  Congress  and  the 
Legislatures  of  three-fourths  of  the  States  may  abridge  the 
freedom  of  speech  and  of  the  press,  and  the  right  of  assem¬ 
bly,  and  of  petition  for  redress  of  grievances;  may  violate 
the  right  of  the  individual  to  be  secure  in  his  person  and 
effects  against  unreasonable  searches  and  seizures;  may  in¬ 
troduce  the  most  summary  processes  and  proceedings  in 
criminal  cases  and  ignore  every  right  of  an  accused;  and 
may  even  deprive  one  of  life,  liberty  or  property  without 
due  process  of  law,  and  take  private  property  for  public  use 


63 


without  just  compensation.  If  the  amending  function  is 
limited  by  some  of  these  first  ten  Amendments  and  not  by 
others  of  them,  where  is  the  line  to  be  drawn?  And  if  no 
line  can  be  drawn,  then  all  the  first  ten  Amendments  are 
limitations  upon  the  amending  function,  or  none  of  them 
are. 

The  defendants  in  urging  that  Article  V  should  be  con¬ 
strued  as  delegating  a  substantive  power  to  add  to,  subtract 
from,  change,  alter,  or  revise  this  Constitution  upon  any  pro¬ 
posal  by  Congress,  ignore  the  historical  travel  of  constitu¬ 
tional  development.  They  entirely  misconceive  the  plan  and 
scope  and  purpose  of  the  Federal  Constitution.  Their 
theory  would  result  in  the  overthrow  of  all  those  barriers 
that  were  so  wisely  erected  for  the  protection  of  civil  liberty. 
Even  the  present  application  of  the  doctrine  fundamentally 
alters  the  relation  of  the  States  to  the  Federal  Government, 
and  even  threatens  the  existence  and  autonomy  of  the  States, 
for  any  government  whose  powers  are  subject  to  the  control 
of  another  and  distinct  government  can  exist  only  at  the 
mercy  of  that  other  government.  “Without  the  States  in 
union  there  could  be  no  such  political  body  as  the  United 
States.” 

A  construction  therefore  of  Article  V  which  would  give 
support  to  the  doctrine  which  the  defendants  advance  would 
not  only  run  counter  to  the  views  heretofore  entertained  by 
our  Courts  and  jurists,  but  would  definitely  tend  to  the  de¬ 
struction  of  the  States,  and  thereby  of  the  Union  itself.  In 
this  connection  we  may  quote  the  apt  words  of  Mr.  Justice 
Miller,  in  the  Slaughterhouse  Cases ,  supra : 

“The  argument,  we  admit,  is  not  always  the  most 
conclusive  which  is  drawn  from  the  consequences  urged 
against  the  adoption  of  a  particular  construction  of  an 
instrument.  But  when,  as  in  the  case  before  us,  these 


64 


consequences  are  so  serious,  so  far  reaching  and  per¬ 
vading,  so  great  a  departure  from  the  structure  and 
spirit  of  our  institutions ;  when  the  effect  is  to  fetter  and 
degrade  the  state  governments  by  subjecting  them  to  the 
control  of  Congress,  in  the  exercise  of  powers  heretofore 
universally  conceded  to  them  of  the  most  ordinary  and 
fundamental  character ;  when  in  fact  it  radically 
changes  the  whole  theory  of  the  relations  of  the  state 
and  Federal  Governments  to  each  other  and  of  both 
these  governments  to  the  people;  the  argument  has  a 
force  that  is  irresistible,  in  the  absence  of  language 
which  expresses  such  a  purpose  too  clearly  to  admit  of 
doubt.” 

We  are  not  Tvholly  dependent  however  in  this  case  upon 
the  argument  drawn  from  the  consequences  of  defendants’ 
doctrine.  Strong  as  that  argument  is,  there  are  others 
equally  cogent.  There  is  nothing  in  the  wording  of  Article 
A^  which  directly  provides  that  the  powers  reserved  to  the 
States  are  subject  to  the  control  of  the  Federal  Government 
through  the  process  of  amendment;  nor  is  there  anything  in 
Article  V,  or  in  any  other  part  of  the  Constitution  from 
which  may  be  inferred  such  an  inconsistent  and  extra¬ 
ordinary  purpose.  All  reasoning  and  all  deductions  are  to 
the  contrary.  If  the  amending  function  in  the  Federal  Con¬ 
stitution  had  anv  relation  to  the  constitutions  of  the  several 

«/ 

States  or  to  the  powers  which  were  reserved  to  the  several 
States,  words  would  have  been  employed  in  Article  A^  clearly 
and  directly  to  express  that  intent.  Mr.  Chief  Justice  Mar¬ 
shall  pointed  out  in  Barron  v.  The  Mayor  and  City  Council 
of  Baltimore ,  7  Pet.  243  (1833),  that  wherever  in  the  origi¬ 
nal  Constitution  there  was  an  inhibition  intended  to  act  on 
State  powers,  words  were  employed  which  directly  expressed 
that  intent.  That  case  involved  the  contention  that  certain 
state  legislation  was  in  violation  of  the  Fifth  Amendment  to 
the  Federal  Constitution.  Holding  that  that  Amendment 


65 


was  a  limitation  upon  the  Federal  and  not  upon  the  State 
governments  and  that  the  same  rule  of  construction  should 
be  applied  to  the  Amendments  as  to  the  original  Constitu¬ 
tion,  the  Chief  Justice  said : 

“It  would  be  tedious  to  recapitulate  the  several 
limitations  on  the  power  of  the  States  which  are  con¬ 
tained  in  this  section.  They  will  be  found,  generally, 
to  restrain  State  legislation  on  subjects  intrusted  to  the 
government  of  the  Union,  in  which  the  citizens  of  all  the 
States  are  interested.  In  these  alone  were  the  whole 
people  concerned.  The  question  of  their  application  to 
States  is  not  left  to  construction.  It  is  averred  in  posi¬ 
tive  ivords. 

“If  the  original  Constitution,  in  the  ninth  and  tenth 
sections  of  the  first  article,  draws  this  plain  and  marked 
line  of  discrimination  between  the  limitations  it  imposes 
on  the  powers  of  the  general  government  and  on  those 
of  the  States;  if  in  every  inhibition  intended  to  act  on 
State  power,  words  are  employed  which  directly  express 
that  intent,  some  strong  reason  must  be  assigned  for  de¬ 
parting  from  this  same  and  judicious  course  in  framing 
the  amendments,  before  that  departure  can  be  assumed. 
We  search  in  vain  for  that  reason. 

“Had  the  people  of  the  several  States,  or  any 
of  them  required  changes  in  their  constitutions;  had 
they  required  additional  safeguards  to  liberty  from 
the  apprehended  encroachments  of  their  particular  gov¬ 
ernments,  the  remedy  was  in  their  own  hands,  and  would 
have  been  applied  by  themselves.  A  convention  would 
have  been  assembled  by  the  discontented  State,  and  the 
required  improvements  would  have  been  made  by  itself. 
The  unwieldly  and  cumbrous  machinery  of  procuring  a 
recommendation  from  two-thirds  of  Congress  and  the 
assent  of  three-fourths  of  their  sister  States ,  could  never 
have  occurred  to  any  human  being  as  a  mode  of  doing 
that  which  might  be  effected  by  the  State  itself.  Had 
the  framers  of  these  amendments  intended  them  to  be 
limitations  on  the  powers  of  the  State  governments  they 


66 


would  have  imitated  the  framers  of  the  original  Consti¬ 
tution,  and  have  expressed  that  intention.  Had  Con¬ 
gress  engaged  in  the  extraordinary  occupation  of  im¬ 
proving  the  constitutions  of  the  several  States  by  afford¬ 
ing  the  people  additional  protection  from  the  exercise  of 
power  by  their  own  governments  in  matters  which  con¬ 
cerned  themselves  alone,  they  would  have  declared  this 
purpose  in  plain  and  intelligible  language  ”  p.  249. 

Tlie  framers  of  the  Constitution,  however,  did  not  leave 
such  an  important  matter  in  doubt.  We  indulge  in  the  con¬ 
fidence  that  a  fair  and  natural  construction  of  the  provisions 
of  Article  V  will  lead  to  a  complete  refutation  of  defend¬ 
ants’  theory  that  the  Federal  Government,  through  the 
amending  function,  may  invade  the  powers  and  jurisdictions 
of  the  States. 


(8)  The  So-called  Eighteenth  Amendment  is  Not  an 
Amendment  Within  the  Purview  of  Article  V. 

Mr.  Justice  Brewer,  in  delivering  the  opinion  of  the 
court,  in  the  case  of  South  Carolina  v.  United  States,  199 
U.  S.  435,  447,  (1905)  said: 

“The  Constitution  is  a  written  instrument.  As 
such  its  meaning  does  not  alter.  That  which  it  meant  , 
when  adopted,  it  means  now.  Being  a  grant  of  powers 
to  a  government,  its  language  is  general ;  and,  as 
changes  come  in  social  and  political  life,  it  embraces  in 
its  grasp  all  new  conditions  which  are  within  the  scope 
of  the  powers  in  terms  conferred.  In  other  words, 
while  the  powers  granted  do  not  change,  they  apply 
from  generation  to  generation  to  all  things  to  which 
they  are  in  their  nature  applicable.  This  in  no  manner 
abridges  the  fact  of  its  changeless  nature  and  meaning. 
Those  things  which  are  within  its  grants  of  power,  as 
those  grants  were  understood  when  made,  are  still 


67 


within  them;  and  those  things  not  within  them  remain 
still  excluded.  As  said  by  Mr.  Chief  Justice  Taney  in 
Scott  v.  Sandford ,  19  How.  393,  426 : 

“  ‘It  is  not  only  the  same  in  words,  but  the  same 
in  meaning,  and  delegates  the  same  powers  to  the  gov¬ 
ernment,  and  reserves  and  secures  the  same  rights  and 
privileges  to  the  citizen;  and  as  long  as  it  continues  to 
exist  in  its  present  form,  it  speaks  not  only  in  the  same 
words,  but  with  the  same  meaning  and  intent  with 
which  it  spoke  when  it  came  from  the  hands  of  its 
framers,  and  was  voted  on  and  adopted  by  the  people 
of  the  United  States.  Any  other  rule  of  construction 
would  abrogate  the  judicial  character  of  this  court,  and 
make  it  the  mere  reflex  of  the  popular  opinion  or  passion 
of  the  day/ 

t/ 

“It  must  also  be  remembered  that  the  framers  of 
the  Constitution  were  not  mere  visionaries,  toying  with 
speculations  or  theories,  but  practical  men,  dealing 
with  the  facts  of  political  life  as  they  understood  them; 
putting  into  form  the  government  they  were  creating, 
and  prescribing,  in  language  clear  and  intelligible,  the 
powers  that  government  was  to  take.  Mr.  Chief  Jus¬ 
tice  Marshall,  in  Gibbons  v.  Ogden ,  9  Wheat.  1,  188, 
well  declared : 

“  ‘As  men  whose  intentions  require  no  concealment 
generally  employ  the  words  which  most  directly  and 
aptly  express  the  ideas  they  intend  to  convey,  the  en¬ 
lightened  patriots  who  framed  our  Constitution,  and 
the  people  who  adopted  it,  must  be  understood  to  have 
employed  words  in  their  natural  sense,  and  to  have 
intended  what  they  have  said/ 

After  quoting  the  above  passage  from  the  case  of  Gib¬ 
bons  v.  Ogden ,  in  his  work  on  Constitutional  Limitations, 
7th  Ed.,  p.  93,  Judge  Cooley  remarks: 

“This  is  but  saying  that  no  forced  or  unnatural 
construction  is  to  be  put  on  their  language;  and  it 
seems  so  obvious  a  truism  that  one  expects  to  see  it 


68 


universally  accepted  without  question;  but  the  attempt 
is  made  so  often  by  interested  subtlety  and  ingenious 
refinement  to  induce  the  courts  to  force  from  these  in¬ 
struments  a  meaning  which  their  framers  never  held, 
that  it  frequently  becomes  necessary  to  redeclare  this 
fundamental  maxim.*’ 


(A)  Selection  of  the  Word  Amendment  by  Mr.  Madison. 

The  principle  of  amendment  in  the  Federal  Constitu¬ 
tion  originated  in  the  thirteenth  resolution  of  the  Virginia 
Plan.  Farr  and,  Vol.  1,  p.  22.  The  Virginia  Plan  was 
drafted  by  Mr.  Madison  after  months  of  labor  prior  to  the 
assembling  of  the  delegates  at  Philadelphia.  Taylor :  Origin 
and  Growth  of  Am.  Const.,  pp.  550-561.  It  was  presented 
to  the  Convention  by  Governor  Randolph,  as  the  head  of 
the  Virginia  delegation.  It  consisted  of  a  set  of  resolutions, 
the  thirteenth  of  which  read  as  follows :  “That  provision 
ought  to  be  made  for  the  amendment  of  the  Articles  of  Union 
whensoever  it  shall  seem  necessary.”  In  passing,  it  may  be 
pointed  out  that  it  wTas  the  particular  Articles  of  Union  that 
wTere  to  be  amended.  The  sense  wtis  not  changed  when  later 
the  wrords  “this  Constitution”  w~ere  substituted  for  “Articles 
of  Union.”  The  word  amendment  was  so  fully  understood 
as  to  its  import  and  apparently  regarded  as  so  appropriate 
to  the  context,  that  during  the  weeks  of  debate  in  which 
every  w^ord  and  phrase  was  scrutinized,  no  criticism  was 
passed  upon  it.  There  is  no  evidence  that  any  other  w'ord 
or  wwds  wrere  considered  in  this  connection.  There  wtis 
before  the  Committee  of  Detail  a  document  in  the  hand¬ 
writing  of  Governor  Randolph  which  employed  the  phrase 
“alter  or  revise”,  but  no  change  wtis  reported  by  the  Com¬ 
mittee  of  Detail.  Farrand,  Vol.  2,  pp.  137,  148.  The  exist- 


69 


ence  of  this  document  furnishes  ample  proof  that  its  author 
did  not  draft  the  Virginia  Plan  in  which  amendment  was 
more  accurately  and  understanding^  used. 

The  principle  of  amendment  was  not  new  in  American 
Constitutions.  There  were  several  precedents  which  un¬ 
doubtedly  served  as  a  guide,  both  in  the  preparation  of  the 
Virginia  Plan  and  in  the  discussion  of  it  in  Convention.  As 
early  as  1683  the  Pennsylvania  Frame  of  Government  and 
the  Pennsylvania  Act  of  Settlement  contained  within  them¬ 
selves  a  provision  for  modification.  A  similar  provision  w^as 
incorporated  in  the  Pennsylvania  Frame  of  Government  of 
1696  and  in  the  Pennsylvania  Charter  of  Privileges  of  1701. 
In  each  case  the  instrument  provided  that  it  should  not  be 
“altered,  changed  or  diminished”  wdthout  the  consent  of  the 
Governor  and  six  parts  of  seven  of  the  Assembly. 

Immediately  after  the  Declaration  of  Independence  all 
of  the  colonies,  except  Connecticut  and  Rhode  Island, 
adopted  new  written  Constitutions  and  in  several  of  them 
provision  was  made  in  some  form  for  modification  of  the 
instrument  wdthout  entire  revision.  These  Constitutions 
undoubtedly  furnished  a  precedent  for  incorporating  Article 
V  in  the  Federal  Constitution.  The  Constitutions  of  North 
Carolina  of  1776,  of  New  Jersey  of  1776,  of  New  Hampshire 
of  1776,  and  of  South  Carolina  of  1776  contain  no  provision 
for  change  or  amendment.  In  the  Maryland  Constitution 
of  1776  (Article  59)  the  words  were  “altered,  changed  or 
abolished”.  Poore ,  Vol.  1,  pp.  817,  829.  In  the  Delaware 
Constitution  of  1776  (Article  30)  the  phrase  was  “altered, 
changed  or  diminished”.  Poore,  Vol.  1,  pp.  273,  278.  The 
Constitution  of  George,  adopted  in  1777  (Article  63),  pro¬ 
vided  only  for  “alterations”.  Poore,  Vol.  1,  pp.  377,  383. 
The  South  Carolina  Constitution  of  1778  (Article  44)  uses 
the  Avords  “alter”  and  “change”  in  the  same  sense.  Of  more 


70 


direct  bearing,  however,  than  the  preceding  were  the  Penn¬ 
sylvania  Constitution  of  1770  and  the  Massachusetts  Con¬ 
stitution  of  1780.  The  provision  of  the  former  was  copied 
in  the  Vermont  Constitution  of  1777,  (Poore,  Yol.  2,  pp.  1857, 
1805),  and  in  the  succeeding  Vermont  Constitutions  of  1780 
and  1793.  The  provision  in  the  Massachusetts  Constitution 
of  1780  was  copied  in  the  Xew  Hampshire  Constitution  of 
1784.  Poore,  Yol.  2,  pp.  1280,  1293. 

The  Pennsylvania  Constitution  of  1770  provided  for  the 
election  of  a  Council  of  Censors  in  everv  seventh  vear,  com- 

e  v  7 

posed  of  two  persons  in  every  city  and  county.  Among  the 
powers  of  this  council  was  the  following: 

**The  said  council  of  censors  shall  also  have  power 
to  call  a  convention,  to  meet  within  two  years  after  their 
sitting,  if  there  appear  to  them  an  absolute  necessity  of 
amending  any  article  of  the  constitution  which  may  be 
defective,  explaining  such  as  may  be  thought  not  clearly 
expressed,  and  of  adding  such  as  are  necessary  for  the 
preservation  of  the  rights  and  happiness  of  the  people: 
But  the  articles  to  be  amended,  and  the  amendments 
proposed,  and  such  articles  as  are  proposed  to  be  added 
or  abolished,  shall  be  promulgated  at  least  six  months 
before  the  day  appointed  for  the  election  of  such  con¬ 
vention,  for  the  previous  consideration  of  the  people, 
that  they  may  have  an  opportunity  of  instructing  their 
delegates  on  the  subject.**  Poore,  Yol.  2,  pp.  1540.  1548. 

This  Pennsylvania  Constitution  makes  a  sharp  distinc¬ 
tion  between  amendments,  additions  and  explanatory  pro¬ 
visions.  It  also  clearlv  indicates  that  amendments  were  to 
apply  to  the  particular  articles  of  the  Constitution  and  that 
the  amending  function  was  not  a  matter  of  speculation,  out¬ 
side  of  the  instrument  and  unrelated  to  it. 

The  Massachusetts  Constitution  of  1780,  in  Chapter  0, 
Article  10,  provided : 


“In  order  the  more  effectually  to  adhere  to  the  prin¬ 
ciples  of  the  constitution,  and  to  correct  those  violations 
which  by  any  means  may  be  made  therein,  as  ivell  as  to 
form  such  alterations  as  from  experience  shall  be  found 
necessary,  the  general  court  which  shall  be  in  the  year 
of  our  Lord  one  thousand  seven  hundred  and  ninety- 
five  shall  issue  precepts  to  the  selectmen  of  the  several 
towns,  and  to  the  assessors  of  the  unincorporated  plan¬ 
tations,  directing  them  to  convene  the  qualified  voters 
of  their  respective  towns  and  plantations,  for  the  pur¬ 
pose  of  collecting  their  sentiments  on  the  necessity  or 
expediency  of  revising  the  constitution  in  order  to 
amendments.  Poore,  Vol.  1,  pp.  956,  972. 

The  Pennsylvania  Constitution  of  1776  and  the  Massa- 
«/ 

chusetts  Constitution  of  1780  were  the  first  to  introduce  the 
qualifying  provision  that  no  amendment  should  be  made 
except  in  case  of  necessity.  In  the  former  the  exigency  was 
described  as  “an  absolute  necessity  of  amending"  and  in  the 
latter  “as  from  experience  shall  be  found  necessary.”  With¬ 
out  question  the  word  “necessary”  in  Article  A'  of  the  Fed¬ 
eral  Constitution  had  its  origin  in  these  provisions  of  the 
Pennsylvania  and  Massachusetts  Constitutions.  Benjamin 
Franklin,  who  sat  in  the  Federal  Convention,  presided  over 

the  Assembly  that  framed  the  Pennsylvania  Constitution  of 

«/  «.• 

1776. 

The  Articles  of  Confederation  which  became  effective 
March  1,  1781,  provided : 

“The  Articles  of  this  Confederation  shall  be  invio¬ 
lably  observed  by  every  State,  and  the  Lhiion  shall  be 
perpetual;  nor  shall  any  alteration,  at  any  time  here¬ 
after,  be  made  in  any  of  them;  unless  such  alteration 
be  agreed  to  in  a  Congress  of  the  United  States,  and  be 
afterwards  confirmed  by  the  Legislature  of  every  State.” 
Article  13. 

Mr.  Madison,  therefore,  had  before  him  in  drafting  the 


72 


thirteenth  resolution  of  the  Virginia  Plan  and  the  dele¬ 
gates  at  Philadelphia  had  before  them  in  considering  and 
discussing  that  resolution  the  following  words  which  had 
been  employed  in  amendatory  provisions  of  prior  Constitu¬ 
tions  :  “amend”,  “alter”,  “change”,  “diminish”,  “abolish”, 
“add”,  “explain”  and  “revise”.  It  would  appear  pedantic 
to  define  and  distinguish  words  of  such  diverse  origin 
and  different  shades  of  meaning.  A  resort  to  any  lexicon 
would  suffice.  The  framers  of  the  Constitution,  having 
before  them  examples  of  the  use  of  so  many  words  of  dis¬ 
tinguishable  conception,  selected  that  word  as  expressive  of 
their  intent  which  wTas  of  them  all  the  only  one  applicable 
to  a  limited  Constitution.  If  “alter”,  “change”,  “diminish”, 
“abolish”,  “add”,  “explain”  and  “revise”  are  words  of 
broader  and  larger  meaning,  it  is  sufficient  to  say  that 
neither  this  Court  nor  Congress  can  substitute  either  of 
those  words  for  a  word  of  more  limited  meaning  used  in  the 
Constitution.  As  Mr.  Chief  Justice  Taney  said  in  Passenger 
Cases ,  7  How\  283,  493  (1849)  :  “Everyone  will  admit  that  a 
construction  winch  substitutes  a  word  of  larger  meaning 
than  the  wTord  used  in  the  Constitution  could  not  be  justi¬ 
fied  or  defended  upon  any  principle  of  judicial  authority.” 


(B)  The  Derivative  Meaning. 

The  derivative  meaning  of  amend  may  throw  some  light 
upon  the  correct  interpretation  of  that  w^ord  in  Article  A". 
The  underlying  conception  wilich  occasioned  its  creation  in 
the  classical  period  of  Latin  writers  may  be  gathered  from 
its  original  verbal  form,  ex-mendare,  (e  or  ex — from  or  out 
of;  and  menda — a  fault,  error  or  mistake.)  It  was  from 
the  first  almost  exclusively  used  with  reference  to  an  ail¬ 
ment  of  the  body  or  to  an  error  or  mistake  in  a  writing.  Its 


73 


primary  sense  was  an  improvement  in  health  or  the  removal 
of  a  defective  quality  from  a  written  instrument.  It  was 
distinctively  a  qualitative  word,  referring  to  an  existing 
substantive  that  had  in  it  a  quality  that  was  subject  to 
improvement.  The  element  of  removal  or  taking  out  of  an 
existing  quality  of  error  was  essential  in  its  proper  appli¬ 
cation.  An  amendment,  therefore,  in  its  derivative  concep¬ 
tion  implies  the  relation  of  a  bad  and  a  better  quality  in  an 
existing  substantive,  and  the  removal  of  the  bad  and  the 
substitution  of  the  better  quality.  It  has  no  reference  to 
any  change  in  the  purpose  or  identity  of  the  substantive. 
The  purpose  of  a  written  instrument  may  be  the  measure  of 
its  defective  quality,  but  it  is  only  the  quality  that  is  changed 
and  not  the  purpose  or  identity.  The  primary  meaning  of 
the  word  as  used  today  is  still  the  derivative  meaning.  In 
distinguishing  amend  from  the  other  words  with  which  it  is 
attempted  to  be  synonymized,  it  may  be  observed  in  brief 
that  change  and  alteration  embrace  any  variation,  irrespec¬ 
tive  of  quantity  or  quality;  that  addition  and  subtraction 
relate  only  to  quantity;  that  a  revision  is  a  pretentious 
process  of  reviewing  the  wdiole;  and  that  an  amendment  is 
qualitative  and  is  applicable  only  by  reference  and  relation. 

It  would  be  the  most  serious  error  to  confound  these 
words  or  to  employ  them  indiscriminately.  “The  acknowl¬ 
edged  accuracy  of  the  language  and  clearness  of  diction  in 
the  Constitution  would  seem  to  forbid  the  imputation  of  so 
gross  an  error  to  the  distinguished  authors  of  that  instru¬ 
ment. Mr.  Justice  McKinley  in  Passenger  Cases ,  7  How. 
283,  451  (1849). 

Merely  as  a  literary  production  the  Constitution  has 
been  regarded  as  a  masterpiece  of  correct  and  exact  ex¬ 
pression.  The  accurate  scholarship  of  those  able  and  learned 
patriots  who  drafted  the  instrument  would  be  lightly 


74 


esteemed  if  we  were  to  interpret  their  words  with  any  less 
care  and  precision  than  they  exercised  in  the  choice  of  them. 
The  selection  of  the  word  amendment  in  Article  V  was  well 
considered  and  discriminating.  It  conveys  an  exactness  of 
thought.  Its  use  as  a  technical  term  in  the  English  common 
law  confirmed  and  established  its  derivative  meaning  as 
applied  to  legal  documents.  The  common  law  merely  gave 
to  the  term  a  definiteness  of  application. 


(C)  The  Meaning  at  Common  Law. 

It  is  well  known  that  the  framers  of  the  Constitution 
confined  themselves  so  far  as  possible  to  words  and  phrases 
which  had  acquired  by  long  usage  in  legal  procedure  a 
definite  significance;  and  it  has  been  said  that  the  Constitu¬ 
tion  could  not  be  fairly  interpreted  or  well  understood  with¬ 
out  tracing  the  history  of  such  words  and  phrases  through 
the  succeeding  stages  of  development  of  the  common  law. 

In  the  case  of  South  Carolina  v.  United  States,  199  U.  S. 
437,  Mr.  Justice  Brewer  remarked : 

“One  other  fact  must  be  borne  in  mind,  and  that  is 
that  in  interpreting  the  Constitution  we  must  have  re¬ 
course  to  the  common  law.  As  said  by  Mr.  Justice 
Matthews  in  Smith  v.  Alabama,  124  U.  S.  465,  478 : 

“  ‘The  interpretation  of  the  Constitution  of  the 
United  States  is  necessarily  influenced  by  the  fact  that 
its  provisions  are  framed  in  the  language  of  the  English 
common  law,  and  are  to  be  read  in  the  light  of  its  his¬ 
toric 

t/ 

“And  by  Mr.  Justice  Gray  in  United  States  v.  Wong 
Kim  Ark,  169  U.  S.  649,  654 : 

“  ‘In  this,  as  in  other  respects,  it  must  be  inter¬ 
pret  ed  in  the  light  of  the  common  law,  the  principles 
and  historv  of  which  were  familiarly  known  to  the 


7  5 


framers  of  the  Constitution.  Minor  v.  Happersett,  21 
Wall.  162 ;  E#  parte  Wilson,  111  U.  S.  417,  422 ;  Boyd  v. 
United  States,  116  U.  S.  616,  624,  625;  Smith  v.  Ala¬ 
bama,  124  U.  S.  465.  The  language  of  the  Constitution, 
as  has  been  well  said,  could  not  be  understood  without 
reference  to  the  common  law.  1  Kent.  Com.  336 ;  Brad¬ 
ley,  J.,  in  Moore  v.  United  States,  91  U.  S.  270,  274.’  ” 

Procedure  at  common  law  in  its  early  stage  frequently 
defeated  its  own  end  by  being  governed  more  by  the  letter 
than  by  the  spirit.  This  strict  adherence  to  form  occasioned 
great  injustice  whenever  a  litigant  took  advantage  of  some 
immaterial  error  committed  in  a  pleading  or  process.  To 
remedy  this  condition  Parliament  began  to  legislate  at  an 
early  date.  Cap.  XI,  14  Edward  III  (1340)  dealt  with  mis¬ 
prisions  of  clerks  and  provided  that  “no  process  shall  be 
annulled,  or  discontinued,  by  mistaking  in  writing  one  syl¬ 
lable  or  one  letter,  too  much  or  too  little ;  but  as  soon  as  the 
thing  is  perceived,  by  challenge  of  the  party,  or  in  other  man¬ 
ner,  it  shall  be  hastily  amended  in  due  form,  without  giving 
advantage  to  the  party  that  challengeth  the  same  because  of 
such  misprision.”  A  diversity  of  opinion  arose  as  to  whether 
the  amendment  could  be  made  both  before  and  after  judg¬ 
ment.  “To  put  the  thing  in  more  open  knowledge,”  Cap. 
IV,  9  Henry  V  (1421)  authorized  the  justices  before  whom 
any  plea,  record,  or  process  is  depending  to  amend  such  plea, 
record,  or  process  as  well  after  judgment  as  before.  As  this 
statute  was  to  remain  in  force  until  the  convening  of  the 
Parliament  “that  shall  be  first  holden  after  the  return  of 
our  sovereign  lord  the  King  into  England  from  beyond  the 
sea,”  it  was  determined  by  the  death  of  King  Henry  V  in 
France.  By  Cap.  Ill,  4  Henry  VI  (1425),  however,  this 
amelioration  in  the  practice  was  made  permanent  and 
“effectual  in  law  to  endure  for  ever.” 

The  principle  of  amendment  was  extended  by  Cap.  XII, 


76 


8  Henry  VI  (1429),  and  applied  to  writs  of  error  and  other 
certifications.  No  judgment  or  record  was  to  be  reversed 
or  annulled  by  error  in  the  certification  and  the  judges  were 
empowered  to  cure  any  variance  and  “to  reform  and  amend 
in  affirmance  of  the  judgments.”  A  more  comprehensive 
statute  (Cap.  XV)  was  enacted  in  the  same  year.  This 
related  not  only  to  depending  records  and  processes,  but  to 
returns  of  officers.  The  judges  were  given  discretion,  “to 
be  taken  where  they  shall  think  needful,”  to  make  amend¬ 
ment  by  reason  of  any  default  or  misprision  in  the  returns 
of  sheriffs,  coroners,  bailiffs,  and  other  officers,  whether  the 
default  or  misprision  was  due  to  the  clerks  of  court  or  to  the 
officers  themselves  or  to  their  clerks. 

Cap.  XXX,  32  Henry  VIII  (1540),  in  supporting  judg¬ 
ments  after  verdicts,  where  misjoinder,  mispleading,  jeofail 
or  other  defect  appeared,  gave  force  to  the  legal  fiction  that 
the  defect  had  been  cured  by  an  implied  amendment.  This 
statute  recited  that  litigants  had  been  “greatly  delayed  and 
hindered  in  their  suits  and  demands,  by  reason  of  crafty, 
subtile  and  negligent  pleadings,  *  *  *  in  ministering 

of  their  declarations  and  bars,  as  also  in  their  replications, 
rejoinders,  rebutters,  joining  of  issues,  and  other  pleadings,” 
and  then  provided  that  after  verdict  rendered  judgment 
should  be  entered  “according  to  the  said  verdict,  without 
any  reversal  or  undoing  of  the  same  by  writ  of  error,  or  of 
false  judgment,  in  like  form  as  though  no  such  default  or 
negligence  had  ever  been  had  or  committed.”  Cap.  XIV,  of 
18  Elizabeth  (157G)  also  related  to  judgments  after  verdict, 
that  they  should  not  be  “stayed  or  reversed  by  reason  of  any 
default  in  form,  or  lack  of  form,  touching  false  Latin  or 
variance  from  the  register,  or  other  defaults  in  form,  in  any 
writ  original  or  judicial,  count,  declaration,  plaint,  bill,  suit 
or  demand,  or  for  want  of  any  writ  original  or  judicial,  or 


77 


by  reason  of  any  imperfect  or  insufficient  return  of  any 
sheriff  or  other  officer,  or  for  want  of  any  warrant  of  attor¬ 
ney,  or  by  reason  of  any  manner  of  default  in  process.” 
Cap.  XIII,  21  James  I  (1623)  extended  the  doctrine  in  like 
cases  by  making  it  applicable  to  numerous  other  forms  of 
variance  and  defects. 

Cap.  VIII,  of  16  and  17  Charles  II  (1664)  was  directed 
against  the  dilatory  and  vexatious  practice  of  securing  a 
stay  of  execution  by  writ  of  error  and  supersedeas,  based 
on  some  immaterial  variance  or  defect.  This  statute  pro¬ 
vided  that  the  variances  and  defects  therein  enumerated 
“and  all  other  matters  of  like  nature,  not  being  against  the 
right  of  the  matter  of  the  suit,  nor  where  by  the  issue  or 
trial  are  altered,  shall  be  amended  by  the  justices  or  other 
judges  of  the  courts  where  such  judgments  are  or  shall  be 
given,  or  whereunto  the  record  is  or  shall  be  removed  by 
writ  of  error.”  Cap.  XVI,  4  Anne  (1705),  was  entitled  “An 
act  for  the  Amendment  of  the  Law,  and  the  better  Advance¬ 
ment  of  Justice.”  This  statute  dealt  broadly  with  the  prac¬ 
tice  of  the  court,  simplified  the  procedure,  and  restricted 
dilatory  pleadings.  “The  court  shall  give  judgment  accord¬ 
ing  to  the  very  right  of  the  cause,”  the  first  section  con¬ 
cludes,  “without  regarding  any  such  imperfections,  omis¬ 
sions,  and  defects,  or  any  other  matter  of  like  nature,  except 
the  same  shall  be  specially  and  particularly  set  down  and 
shewn  for  cause  of  demurrer.”  Cap.  XX,  9  Anne  (1710), 
was  an  act  “for  rendering  the  proceedings  upon  writs  of 
mandamus,  and  informations  in  the  nature  of  a  quo  war¬ 
ranto,  more  speedy  and  effectual;  and  for  the  more  easily 
trying  and  determining  the  rights  of  offices  and  franchises 
in  corporations  and  boroughs.”  This  was  more  special  in 
its  nature,  and  intended  to  cure  the  mischief  of  delay. 
Another  statute  of  amendment  was  Cap.  XIII,  5  George  I 


7  8 


(1718).  This  was  styled:  “An  act  for  the  Amendment  of 
Writs  of  Error;  and  for  the  further  preventing  the  arrest¬ 
ing  or  reversing  of  Judgments  after  Verdict.”  It  provided : 
“That  all  writs  of  error,  wherein  there  shall  be  any  variance 
from  the  original  record,  or  other  defect,  may  and  shall  be 
amended  and  made  agreeable  to  such  record  ” 

These  Statutes  of  Amendment  and  Jeofail,  and  the 
numerous  cases  involving  the  interpretation  and  application 
of  them,  established  the  principle  of  amendment  as  a  legal 
doctrine.  This  is  evident  from  the  early  law  dictionaries. 
Not  many  are  at  hand,  but  the  following  references  will  show 
that  there  was  complete  unanimity  as  to  the  scope  and  mean¬ 
ing  of  the  word  as  a  legal  term  applied  to  Court  procedure. 

“A  Law-Dictionary.  Interpreting  such  difficult  and 
obscure  Words  and  Terms,  as  are  found  either  in  Our  Com¬ 
mon  or  Statute,  Ancient  or  Modern  Lawes.”  Bv  Thomas 
Blount,  Esq.,  of  the  Inner  Temple,  London,  1670. 

“Amendment  signifies  the  correction  of  an  Error 
comm  itted  in  a  Process ,  and  espied  before  or  after  Judg¬ 
ment;  and  sometimes  after  the  party  seeking  advantage 
by  the  Error.  Brook,  titulo,  Error  and  Amendment.” 

“The  Practical  Register :  or,  A  General  Abridgment  of 
the  LAW,  As  it  is  now  practised  in  the  several  Courts,  &c.” 
Collected  by  the  Author,  John  Lilly,  Gent.,  London,  1725. 

“Amendment  is,  where  Error  is  in  the  Process, 
there  the  Judges  may  amend  it  after  Judgment.  But 
if  there  be  Error  in  giving  of  the  Judgment  (viz.  a 
wrong  Judgment  is  given)  there  they  cannot  amend  it, 
but  the  Party  must  bring  his  Writ  of  Error;  but  where 
the  Fault  appears  to  be  in  the  Clerk  who  writ  the 
Record,  it  may  be  amended.” 

“A  Law  Dictionary:  or  the  Interpreter  of  Words  and 


79 


Terms,  used  either  in  the  Common  or  Statute  Laws  of  Great 
Britain,  and  in  Tenures  and  Jocular  Customs.”  Printed  by 
Nutt  &  Gosling,  London,  1727. 

“Amendment,  Emendatio,  Signifies  in  Common 
Law,  a  Correction  of  an  Error  committed  in  a  Process, 
and  espied  before  Judgment,  and  sometimes  after  the 
Party’s  seeking  advantage  by  the  Error.  Terms  de  la 
Ley.  Bro.  Tit.  Amendment  per  tot.  But  if  the  Fault 
be  found  after  Judgment  given,  the  Party  that  will 
redress  it,  is  driven  to  his  Writ  of  Error.  Bro.  Tit. 
Error  and  amendment.” 

“The  Common  Law  Common-Plac’d :  Containing  The 
Substance  and  Effect  of  all  the  Common  Law  Cases,  &c.” 
By  Giles  Jacob,  Gent.,  London,  1733. 

“Amendment  is  the  Correction  of  an  Error  com¬ 
mitted  in  Writs  and  Process  of  Courts,  and  other  Law 
Proceedings.  In  many  cases  Faults  of  Clerks,  shall  be 
amended :  But  original  Writs  are  not  amenable  at  Com¬ 
mon  Law ;  though  judicial  Writs  have  been  often 
amended.  A  Declaration  grounded  on  original  Writ, 
may  not  be  amended,  if  the  Writ  be  erroneous.” 

“A  Xew  Law-Dictionary :  Containing  The  Interpre¬ 
tation  and  Definition  of  Words  and  Terms  used  in  the  LAW, 
&c.”  By  Giles  Jacob,  Gent.,  London,  1744. 

“Amendment,  Emendatio,  The  Correction  of  an 
Error  committed  in  any  Process,  which  may  be  amended 
after  Judgment;  but  if  there  be  any  Error  in  giving  the 
Judgment,  the  Party  is  driven  to  his  Writ  of  Error: 
Though  where  the  Fault  appears  to  be  in  the  Clerk  who 
writ  the  Record,  it  may  be  amended.  Terms  de  Ley  39.” 

The  Commentaries  of  Judge  Blackstone  was  published 
in  1753,  and  was  widely  read  in  the  American  colonies.  In 
the  Virginia  convention  Mr.  Madison  said :  “I  will  refer 


8o 


you  to  a  book  which  is  in  every  man’s  hand, — ‘Blackstone’s 
Commentaries.’  ”  Through  the  writings  of  Blackstone  the 
history  of  the  common  law  and  the  legal  terms  employed  in 
English  jurisprudence  were  fully  understood  by  lawyer  and 
layman.  The  work  was  frequently  referred  to  and  quoted, 
both  in  the  Federal  and  State  Conventions.  In  Blackstone’s 
time  the  Statutes  of  Amendment  and  Jeofail  were  so  well 
known  and  their  principle  so  well  established  in  the  law 
that  he  refers  to  it  as  “the  general  doctrine  of  amendment,” 
and  narrates  in  full  its  origin  and  history.  Sharswood’s  Ed., 
Bk.  3,  Chap.  25,  p.  207. 

Pleadings  at  common  law  were  framed  for  the  purpose 
of  bringing  the  parties  to  an  exact  issue  and  the  amendment 
of  a  process  assisted  in  perfecting  the  issue  and  carrying 
out  the  purpose  of  the  process.  In  its  common  law  applica¬ 
tion,  therefore,  the  word  amend  still  maintained  its  deriva¬ 
tive  meaning,  as  it  was  directed  to  (1)  an  existing  quality 
of  error  in  the  process;  (2)  the  removal  of  that  existing 
quality  of  error ;  and  ( 3 )  the  substitution  therefor  of  a  better 
quality.  The  process  remained  the  same  process.  It  was 
perfected  only  to  carry  out  its  purpose.  Amendment  pre¬ 
vented  the  purpose  of  the  process  from  being  defeated.  More 
important  still,  the  principle  was  never  applicable  beyond 
the  purpose  or  jurisdiction  of  the  process.  Every  process 
was  limited  by  the  extent  of  the  authority  which  issued  it. 
The  cases  therefore  will  be  searched  in  vain  for  any  prece¬ 
dents  where  a  Court  by  amendment  extended  its  own  juris¬ 
diction,  or  where  a  Court,  acting  within  its  jurisdiction, 
permitted  an  amendment  beyond  the  recognized  purpose  of 
the  process  amended.  As  Mr.  Chief  Justice  Taney  said  in 
Ableman  v.  Booth ,  supra: 

“No  judicial  process,  whatever  form  it  may  assume 

can  have  anv  lawful  autlioritv  outside  of  the  limits  of 

t/  «/ 


8i 


the  jurisdiction  of  the  court  or  judge  by  whom  it  is 
issued;  and  an  attempt  to  enforce  it  beyond  these 
boundaries  is  nothing  less  than  lawless  violence.” 

It  can  not  be  urged  that  the  able  lawyers,  who  were 
members  of  the  Federal  and  State  Conventions,  were  the 
only  ones  conversant  with  the  legal  meaning  of  amendment , 
as  the  English  dictionaries  published  during  the  thirty  years 
prior  to  the  drafting  of  the  Constitution,  in  every  instance 
so  far  as  consulted,  give  a  clear  definition  of  the  word  at 
common  law.  These  publications,  although  printed  abroad, 
had  a  considerable  circulation  in  America.  As  these  dic¬ 
tionaries  may  not  be  easily  available,  we  quote  from  them 
in  full. 


(a)  A  New  Complete  English  Dictionary,  by  D. 
Bellamy,  1760. 

Ame'nd,  (v.)  to  correct,  to  improve  by  art;  to  re¬ 
form  what  is  amiss ;  to  behave  better  than  heretofore. 

Amendment,  (s.)  denotes  an  alteration  in  a  thing 
for  the  better,  a  reformation  of  life,  recovery  of  health. 
In  Laic ,  the  correction  of  an  error  in  the  process. 

(b)  Dictionary  of  the  English  Language,  by  Samuel 
Johnson,  A.  M.,  London,  1760. 

Ame'nd,  v.a.  (amender,  Fr.)  (1)  To  correct,  to 
change  anything  that  is  wrong;  (2)  To  reform  to  life, — • 
Jeremiah.  (3)  To  restore  passages  in  writers  which 
the  copiers  are  supposed  to  have  depraved. 

Ame'nd,  v.n.  To  grow  better, — Sydney. 

Amendment,  s.  (amendement,  Fr.)  (1)  A  change 
from  bad  for  the  better,— Ray.  (2)  Reformation  of 
life, — Hooker.  (3)  Recovery  of  health, — Shakespeare. 


(4)  In  Jaw,  the  correction  of  an  error  committed  in  a 
process. 

/ 

(c)  An  Universal  Etymological  English  Dictionary, 
by  N.  Bailey,  London,  1770. 

Amend',  (amender,  F. ;  of  amendare,  L.)  To  re¬ 
form  ;  to  correct ;  to  repair ;  to  make  or  grow  better. 

Amendment,  (amendement,  F.)  Reformation; 
correction. 

Amendment.  In  law,  the  correction  of  an  error 
committed  and  espied  before  judgment. 

(d)  A  Kew  Dictionary  of  the  English  Language,  by 
William  Kendrick,  LL.D.,  London,  1773. 

Ame'nd,  A-mend,  v.a.  (amender,  Fr. ;  emendo,  Lat.) 
to  correct,  to  change  anything  that  is  wrong  to  some¬ 
thing  better;  to  reform  to  life  or  leave  wickedness;  to 
restore  passages  and  writers  which  the  copiers  are  sup¬ 
posed  to  have  depraved ;  to  recover  the  true  meaning. 

Ame'nd,  v.n.  to  grow  better.  To  amend  differs  from 
to  improve;  to  improve  supposes  or  not  denies  that  the 
thing  is  well  already,  but  to  amend  implies  something 
wrong. 

Amendment,  A-mend-ment,  n.s.  (amendement, 
Fr.)  A  change  from  bad  to  better;  reformation  of  life, 
recovery  to  health.  It  signifies  in  laic  a  correction  of 
an  error  committed  in  a  process  and  espied  before  or 
after  judgment ;  and  sometimes  after  the  party's  seek¬ 
ing  advantage  by  the  error. 

(e)  A  New  and  Complete  Dictionary  of  the  English 
Language,  by  John  Ash,  LL.D.,  London,  1775. 

Ame'nd,  (v.t.  from  the  Lat.  amendo,  to  mend)  To 
correct;  to  restore. 

Ame'nd,  (v.  int.)  To  grow  better. 


83 


Amendment,  (s.  from  amend)  A  change  for  the 
better;  a  reformation;  a  recovery;  in  law ,  the  correc¬ 
tion  of  an  error  in  a  process. 


(f)  The  Royal  English  Dictionary,  by  D.  Penning, 
London,  1775. 

Ame'nd,  v.  ( amender ,  Fr.  amendo ,  Lat. )  To  alter 
something  faulty  for  the  better;  applied  to  writings,  to 
correct;  to  reform  applied  to  manners  or  behavior. 
“ Amend  your  ways  and  your  doings.”  Jerem.  xxvi,  13. 
To  grow  from  a  more  infirm  state  to  a  better ;  to  recover. 

Amendment,  s.  ( amendement ,  Fr.)  An  alteration 
which  makes  it  better ;  a  correction,  a  change  from  vice 
to  virtue;  it  signifies  a  change  from  sickness  towards 
health;  a  recovery. 

Amendment,  s.  ( amendatio ,  Lat.)  In  law ,  a  cor¬ 
rection  of  an  error  committed  in  a  process. 

(g)  An  Universal  Etymological  English  Dictionary, 
bv  N.  Bailey,  London,  1780. 

7  7 

Amend’,  ( amender ,  F. ;  of  amendare ,  L.)  To  re¬ 
form  ;  to  correct ;  to  repair ;  to  make  or  grow  better. 

Amendment,  ( amendement ,  F. )  Reformation; 
correction. 

Amendment.  In  law ,  the  correction  of  an  error 
committed  in  a  process  observed  before  judgment  which 
also  may  be  amended  by  the  Justices  after  judgment. 

(h)  A  General  Dictionary  of  the  English  Language, 
by  Thomas  Sheridan,  A.M.,  London,  1780. 

Amend,  A-mend’,  v.a.  To  correct,  to  change  any¬ 
thing  that  is  wrong,  to  reform  the  life,  to  restore  pas¬ 
sages,  etc. 

Amend,  A-mend^,  v.n.  To  grow  better. 
Amendment,  A-mend’ment,  s.  To  change  from  bad 


84 


for  the  better,  reformation  of  life,  recovery  of  health; 
in  law ,  the  correction  of  an  error  committed  in  a  process. 

(i)  A  Complete  and  Universal  English  Dictionary,  by 
James  Barclay,  1782. 

Ame^nd,  v.a.  ( amender ,  Fr.)  To  alter  something 
faulty  for  the  better,  applied  to  writings  to  correct;  to 
reform  applied  to  manners  or  behaviour;  to  grow  from 
a  more  infirm  state  to  a  better ;  to  recover. 

Amendment,  s.  ( amendement ,  Fr.)  An  alteration 
which  makes  it  better;  a  correction,  a  change  from  vice 
to  virtue;  it  signifies  a  change  from  sickness  towards 
health;  to  recover;  in  law ,  the  correction  of  an  error 
committed  in  a  process. 

(j)  A  Complete  Dictionary  of  the  English  Language, 
by  Thomas  Sheridan,  3d.  ed.,  London,  1790,  2v.  Same  defi¬ 
nitions  as  in  the  London  edition  of  1780.  (infra.) 

(k)  A  Complete  Dictionary  of  the  English  Language, 
by  Thomas  Sheridan,  4th  ed.,  Dublin,  1790,  906  p.  Same 
definitions  as  in  the  London  edition  of  1780.  (infra.) 

(l)  A  Critical  Pronouncing  Dictionary  and  Expositor 
of  the  English  Language,  by  John  Walker,  London,  1791. 

To  Amend,  v.a.  To  correct,  to  change  any  thing 
that  is  wrong;  to  reform  the  life;  to  restore  passages 
in  writers  which  the  copiers  are  supposed  to  have  de¬ 
praved. 

To  Amend,  v.n.  To  grow  better. 

Amendment,  s.  A  change  from  bad  for  the  better ; 
reformation  of  life;  recovery  of  health;  in  lato,  the  cor¬ 
rection  of  an  error  committed  in  a  process. 

There  was  no  English  dictionary  printed  in  America 
prior  to  the  drafting  of  the  Federal  Constitution.  The  first 


85 


from  an  American  press  was  “The  Royal  Standard  English 
Dictionary:  the  First  American  Edition,  carefully  revised 
and  corrected  from  the  Fourth  British  Edition,  by  William 
Perry,  Lecturer,  in  the  Academy  at  Edinburgh.”  This  was 
printed  at  Worcester,  Mass.,  in  1788. 


In  erecting  a  super-government  over  existing  State  gov¬ 
ernments  the  framers  of  the  Constitution  initiated  a  novel 
political  experiment.  There  was  no  precedent  in  all  history 
to  guide  them  in  its  construction.  A  new  sovereignty  was 
to  be  created  over  the  same  people  and  over  the  same  terri¬ 
tory  where  existing  sovereignties  already  held  sway.  The 
super-government  necessarily  must  be  limited  to  keep  it 
within  its  own  field  of  operation  to  prevent  conflict  and  dis¬ 
cord.  It  must  necessarily  be  limited  both  as  to  its  purposes 
and  as  to  its  powers.  The  nearest  analogies  in  law  to  such 
a  delegation  of  limited  authority  were  restricted  grants  and 
powers  of  attorney.  And  as  the  powers  were  to  be  granted 
or  delegated  by  the  sovereign  people  the  instrument  of  the 
grant  or  delegation  of  authority  was  in  its  nature  a  great 
process  under  the  teste  of  the  people  of  the  United  States. 
The  instrument  was  repeatedly  referred  to  as  a  great  war¬ 
rant,  or  charter,  or  commission  of  authority.  Mr.  Iredell 
in  the  North  Carolina  Convention  well  expressed  this  view : 

“It  is  a  declaration  of  particular  powers  by  the 
people  to  their  representatives,  for  particular  purposes. 
It  may  be  considered  as  a  great  power  of  attorney,  under 
which  no  power  can  be  exercised  but  what  is  expressly 
given.  Did  any  man  ever  hear,  before,  that  at  the  end 
of  a  power  of  attorney  it  was  said  that  the  attorney 
should  not  exercise  more  power  than  was  there  given 
him?”  El.  Deb.,  Vol.  4,  p.  148. 

The  Constitution  thus  being  viewed  as  a  great  legal 


86 


process,  warrant  or  commission,  the  principle  of  amendment 
which  had  been  applied  for  centuries  to  judicial  processes 
and  legal  documents  became  directly  applicable.  And  as 
amendment  was  always  limited  to  the  jurisdiction  of  the 
process,  or  to  the  purpose  of  the  pleading,  or  to  the  scope 
of  the  legal  document,  the  term  was  especially  appropriate 
in  relation  to  a  written  Constitution  designedly  limited  in 
all  these  respects. 


(D)  Mr.  Madison's  Interpretation. 

As  the  selection  of  the  word  amendment  in  Article  V 
was  due  to  Mr.  Madison,  it  is  in  point  to  ascertain  the  par¬ 
ticular  significance  he  gave  to  the  word.  In  the  Federal 
Convention  on  August  13th,  upon  motion  of  Mr.  Randolph, 
the  following  proposition  (Art.  1,  Sec.  7)  was  'before  the 
House : 

“Bills  for  raising  money  for  the  purpose  of  revenue 
or  for  appropriating  the  same  shall  originate  in  the 
House  of  Representatives  and  shall  not  be  so  amended 
or  altered,  bv  the  Senate  as  to  increase  or  diminish  the 
sum  to  be  raised  or  change  the  mode  of  levying  it  or  the 
object  of  its  appropriation.”  Farrand ,  Vol.  2,  p.  273. 

In  speaking  to  this  proposition  Mr.  Madison  thus  criti¬ 
cised  its  phraseology: 

“The  words  ‘amend  or  alter,'  form  an  equal  source 
of  doubt  and  altercation.  When  an  obnoxious  para¬ 
graph  shall  be  sent  down  from  the  Senate  to  the  House 
of  Representatives  it  will  be  called  an  origination  under 
the  name  of  an  amendment.  The  Senate  may  actually 
couch  extraneous  matter  under  that  name.  In  these 
cases ,  the  question  will  turn  on  the  degree  of  connec¬ 
tion  between  the  matter  and  object  of  the  bill  and  the 
amendment  offered  to  it.  Can  there  be  a  more  fruitful 


S7 


source  of  dispute,  or  a  kind  of  dispute  more  difficult  to 
be  settled ?”  Farrand,  Yol.  2,  p.  27G. 

It  is  clear  from  this  statement  that  Mr.  Madison’s  con¬ 
ception  was  that  an  amendment  did  not  include  an  origina¬ 
tion,  and  did  not  embrace  extraneous  matter,  but  necessi¬ 
tated  some  connection  or  relation  between  an  amendment 
and  the  thing  amended.  Mr.  Chief  Justice  Taney  in  the 
Passenger  Cases ,  7  How.  283,  477  (1849),  said:  “The  mem¬ 
bers  of  the  Convention  unquestionably  used  the  words  they 
inserted  in  the  Constitution  in  the  same  sense  in  which  they 
used  them  in  their  debates.  It  was  their  object  to  be  under¬ 
stood,  and  not  to  mislead,  and  they  ought  not  to  be  supposed 
to  have  used  familiar  words  in  a  new  or  unusual  sense.” 

The  same  section  of  the  Constitution  was  under  con¬ 
sideration  in  the  case  of  Flint  v.  Stone  Tracy  Co.,  220  U.  S. 
107,  142  (1911).  It  was  there  contended  that  an  act  was 
unconstitutional  because  it  was  a  revenue  measure  and  origi¬ 
nated  in  the  Senate  in  violation  of  Section  7,  of  *  Article  1, 
of  the  Constitution,  providing  that  “all  bills  for  raising 
revenue  shall  originate  in  the  House  of  Representatives ;  but 
the  Senate  may  propose  or  concur  with  amendments  as  on 
other  bills.”  Mr.  Justice  Day,  speaking  for  the  Court,  said : 

“The  bill  having  properly  originated  in  the  House, 
we  perceive  no  reason  in  the  constitutional  provision 
relied  upon  why  it  may  not  be  amended  in  the  Senate 
in  the  manner  which  it  was  in  this  case.  The  amend¬ 
ment  teas  germane  to  the  subject  matter  of  the  bill,  and 
not  beyond  the  power  of  the  Senate  to  propose.” 


88 


( E )  Contemporaneous  Interpretation. 

Great  weight  has  always  been  attached  to  contempora¬ 
neous  exposition.  The  provision  in  Article  V  of  the  Consti¬ 
tution  for  the  amendment  of  the  instrument  did  not  provoke 
much  discussion  in  the  several  State  Conventions  which 
ratified  the  Constitution.  The  authors  of  The  Federalist 
devoted  very  little  attention  to  the  subject.  There  seems  to 
have  been  a  general  acquiescence  in  the  propriety  of  the 
provision. 

In  1787  parliamentary  procedure  was  more  exact  and 
logical  than  it  is  today.  An  amendment  was  then  a  matter 
of  substance,  entirely  a  matter  of  substance.  The  mere 
form  of  introducing  a  proposition  which  was  new  or  which 
was  unrelated  and  extraneous  to  the  matter  under  discussion 
was  never  called  an  amendment.  If  neAV  matter  was  desired 
to  be  introduced,  the  procedure  was  to  move  to  postpone  the 
consideration  of  the  proposition  then  before  the  House  and 
after  that  was  adopted  to  bring  forward  the  new  proposition. 
Xumerous  instances  of  this  procedure  may  be  found  in  the 
Records  of  the  Federal  Convention.  A  rule  adopted  by  the 
First  Congress  at  its  first  session  clearly  states  the  accepted 
parliamentary  practice  of  that  period.  The  one  referred  to 
provides  that 

“Xo  new  motion  or  proposition  shall  be  admitted, 
under  color  of  amendment,  as  a  substitute  for  the  motion 
or  proposition  under  debate.”  Gales  &  Seaton's  Debates, 
Vol.  1,  p.  104. 

The  following  extracts  from  the  debates  in  the  State 
Conventions  illustrate  the  use  of  the  word  amendment  at 
that  time.  They  also  prove  that  it  was  the  general  under¬ 
standing  that  an  amendment  was  the  correction  of  errors 
committed  in  drafting  the  Constitution;  that  such  errors 
were  expected  to  develop  in  the  operation  of  the  government 


89 


and  that  from  experience  alone  they  could  be  determined  and 
best  corrected.  Elliot’s  Debates. 

Mr.  Iredell,  (N.  C.)  :  “The  misfortune  attending 
most  constitutions  which  have  been  deliberately  formed, 
has  been,  that  those  who  formed  them  thought  their  wis¬ 
dom  equal  to  all  possible  contingencies,  and  that  there 
could  be  no  error  in  what  they  did.  The  gentlemen  who 
framed  this  Constitution  thought  with  much  more  diffi¬ 
dence  of  their  capacities;  and,  undoubtedly,  without  a 
provision  for  amendment  it  would  have  been  more  justly 
liable  to  objection,  and  the  characters  of  its  framers 
would  have  appeared  much  less  meritorious.  *  *  * 

It  is  a  most  happy  circumstance,  that  there  is  a  remedy 
in  the  system  itself  for  its  own  fallibility ,  so  that  altera¬ 
tions  can  without  difficulty  be  made,  agreeable  to  the 
general  sense  of  the  public,”  Vol.  4,  p.  176. 

Gov.  Bowdoin,  (Mass.)  :  “Like  all  other  human 
productions,  it  may  be  imperfect;  but  most  of  the  imper¬ 
fections  imputed  to  it  are  ideal  and  unfounded,  and  the 
rest  are  of  such  a  nature  that  they  cannot  be  certainly 
known  but  by  the  operation  of  the  Constitution ;  and  if, 
in  its  operation,  it  should  in  any  respect  be  essentially 
bad,  it  will  be  amended  in  one  of  the  modes  prescribed 
by  it,”  Yol.  2,  pp.  83,  84. 

Mr.  Ames,  (Mass.)  :  “This  Constitution  may  be 
good  without  anv  amendments,  and  vet  the  amendments 
may  be  good ;  for  they  are  not  repugnant  to  the  Consti¬ 
tution.”  Yol.  2,  p.  155. 

Mr.  Thatcher,  (Mass.)  :  “After  all,  I  by  no  means 
pretend  that  there  is  complete  perfection  in  this  pro¬ 
posed  Constitution.  Like  all  other  human  productions, 
it  hath  Us  faults.  Provision  is  made  for  an  amendment, 
whenever,  from  practice,  it  is  found  oppressive.”  Yol.  2, 
p.  146. 


90 


Mr.  Lee,  (Va.)  :  “To  fortify  this  security,  is  there 
not  a  constitutional  remedy  in  the  government,  to  re¬ 
form  any  errors  which  shall  be  found  inconvenient?” 
Vol.  3,  p.  186. 

Mr.  Taylor,  (N.  C.)  :  “Mr.  Joseph  Taylor  thought 
it  improper  to  object  to  every  trivial  case;  that  this 
clause  had  been  argued  on  in  some  degree  before;  and 
that  it  would  be  a  useless  waste  of  time  to  dwell  any 
longer  on  it;  that  if  they  had  the  power  of  amending 
the  Constitution,  every  part  need  not  be  discussed,  as 
some  were  not  objectionable;  and  that,  for  his  own  part, 
he  would  object  when  any  essential  defect  came  before 
the  house.”  Vol.  4,  p.  104. 

Mr.  Jarvis,  (Mass.)  :  “Mr.  President,  I  cannot 
suffer  the  present  article  to  be  passed,  without  rising  to 
express  my  entire  and  perfect  approbation  of  it.  What¬ 
ever  may  have  been  my  private  opinion  of  any  other 
part,  or  whatever  faults  or  imperfections  I  have  re¬ 
marked,  or  fancied  I  have  seen,  in  any  other  instance, 
here,  sir,  I  have  found  complete  satisfaction;  this  has 
been  a  resting  place,  on  which  I  have  reposed  myself  in 
the  fullest  security,  whenever  a  doubt  has  occurred,  in 
considering  any  other  passage  in  the  proposed  Constitu¬ 
tion.”  Vol.  2,  p.  116. 

Mr.  Iredell,  (N.  C. )  :  “Should  the  government  on 
trial  be  found  to  want  amendments,  those  amendments 
can  be  made  in  a  regular  method,  in  a  mode  prescribed 
by  the  Constitution  itself.”  Vol.  4,  p.  130. 

Mr.  Wilson,  (Pa.)  :  “This  Constitution  may  be 
found  to  have  defects  in  it;  hence  amendments  may 
become  necessary.”  Vol.  2,  p.  498. 

Mr.  King,  (Mass.)  :  “He  believed  gentlemen  had 
not,  in  their  objections  to  the  Constitution,  recollected 


9i 


that  this  article  was  a  part  of  it ;  for  many  of  the  argu¬ 
ments  of  gentlemen  were  founded  on  the  idea  of  future 
amendments  being  impracticable.  The  honorable  gen¬ 
tleman  observed  on  the  superior  excellence  of  the  pro¬ 
posed  Constitution  in  this  particular,  and  called  upon 
gentlemen  to  produce  an  instance,  in  any  other  national 
constitution,  where  the  people  had  so  fair  an  opportu¬ 
nity  to  correct  any  abuse  tvhich  might  take  place  in  the 
future  administration  of  the  government  under  it  ”  Vol. 

2,  p.  116. 

In  several  of  the  State  conventions  the  point  was  raised 
that  the  Philadelphia  Convention  had  exceeded  its  authority 
in  proposing  the  new  Constitution ;  that  the  members  of  that 
Convention  were  commissioned  by  the  States  to  amend  the 
Articles  of  Confederation;  and  that  instead  of  amending 
those  Articles  they  had  drafted  an  instrument  entirely  netv 
and  different.  It  was  generally  recognized  that  the  framers 
of  the  Constitution  did  exceed  their  authority,  for  their  cre¬ 
dentials  did  not  empower  them  to  destroy  the  existing  gov¬ 
ernment  under  the  Articles  of  Confederation  and  create  an 
entirely  new  and  different  Constitution.  In  Virginia  Mr. 
Thompson  said :  “The  Convention  were  sent  on  to  Philadel¬ 
phia  to  amend  this  Confederation  ;  but  they  made  a  new 
creature.”  Vol.  3,  p.  61.  And  Mr.  Grayson,  making  the 
same  distinction,  remarked:  “The  late  Convention  were 
not  empowered  totally  to  alter  the  present  Confederation. 
The  idea  was  to  amend.  If  they  lay  before  us  a  thing  quite 
different,  we  are  not  bound  to  accept  it.”  Vol.  3,  p.  614. 


(F)  Interpretation  from  Context. 


By  giving  to  the  word  amendment  its  common  law  mean¬ 
ing,  Article  V  expresses  a  plain,  simple,  unequivocal  intent 
to  provide  for  the  correction  of  errors  committed  in  framing 
the  Constitution.  Sucli  a  provision  would  be  a  natural  pre¬ 
caution  against  unintentional  errors  and  against  defects  that 
might  develop  in  the  course  of  its  operation.  If  this  were  in 
reality  the  purpose,  it  could  not  have  been  more  accurately 
and  exactly  expressed.  This  purpose  comports  with  a  con¬ 
sistent  and  harmonious  construction  of  the  instrument  as  a 
whole.  On  the  other  hand,  if  some  vague  and  corrupt  mean¬ 
ing  be  given  to  amendment,  or  if  the  word  in  Article  V  is 
eliminated  as  it  practically  is  by  defendants’  doctrine,  then 
the  most  serious  inconsistencies  and  consequences  ensue. 
The  object  of  all  interpretation  and  construction  is  to  deter¬ 
mine  the  intent  of  the  framers  of  the  Constitution.  Where 
the  legal  significance  of  a  word  may  be  gathered  from  its 
usage  and  application  at  the  common  law  and  where  that 
meaning  in  connection  with  the  context  expresses  a  plain 
and  simple  intent,  there  must  be  some  strong  reason  ad¬ 
vanced  for  not  accepting  an  interpretation  so  apparent  on 
the  face  of  the  instrument.  In  this  connection  Judge  Cooley 
quotes  the  following  with  approval : 

“Whether  we  are  considering  an  agreement  between 
parties,  a  statute,  or  a  constitution  with  a  view  to  its 
interpretation,  the  thing  which  we  are  to  seek  is  the 
thought  which  it  expresses.  To  ascertain  this,  the  first 
resort  in  all  cases  is  to  the  natural  signification  of  the 
words  employed,  in  the  order  of  grammatical  arrange¬ 
ment  in  which  the  framers  of  the  instrument  have  placed 
them.  If  thus  regarded,  the  words  embody  a  definite 
meaning,  which  involve  no  absurdity  and  no  contradic¬ 
tion  between  different  parts  of  the  same  writing ,  then 
that  meaning,  apparent  on  the  face  of  the  instrument ,  is 


93 


the  one  which  alone  we  are  at  liberty  to  say  teas  intend¬ 
ed  to  be  conveyed.  In  such  a  case  there  is  no  room  for 
construction.  That  which  the  words  declare  is  the 
meaning  of  the  instrument,  and  neither  courts  nor  legis¬ 
latures  have  a  right  to  add  to  or  take  away  from  that 
meaning.”  Cons.  Lim.,  7th  Ed.,  p.  91. 


(a)  “This  Constitution.” 

While  the  interpretation  of  the  word  may  leave  no  room 
for  construction,  still  construction  may  be  resorted  to  for 
the  purpose  of  confirming  the  result  of  interpretation  alone. 
By  Article  V  Congress  is. only  authorized  to  propose  “amend¬ 
ments  to  this  Constitution.”  What  is  this  Constitution?  It 
is  not  a  code ;  it  is  not  a  body  of  transient  laws.  The  fram¬ 
ers  of  the  instrument  fully  understood  that  they  were  estab¬ 
lishing  political  principles  that  were  fundamental  and  upon 
which  the  governmental  structure  was  to  be  erected.  Mr. 
Hamilton  said  in  the  New  York  Convention:  “Constitu¬ 
tions  should  consist  only  of  general  provisions :  the  reason 
is,  that  they  must  necessarily  be  permanent,  and  that  they 
cannot  calculate  for  the  possible  change  of  things.”  El  Deb., 
Yol.  2,  p.  364.  In  North  Carolina  Mr.  Johnson  inquired: 
“Are  laws  as  immutable  as  Constitutions?  Can  anything 
be  more  absurd  than  assimilating  the  one  to  the  other?  The 
idea  is  not  warranted  by  the  Constitution,  nor  consistent 
with  reason.”  El.  Deb.,  Yol.  4,  p.  188.  In  the  same  State 
Mr.  Iredell  remarked :  “Gentlemen  will  be  pleased  to  con¬ 
sider  that  there  is  a  material  difference  between  an  article 
fixed  in  the  Constitution,  and  a  regulation  by  law.  An  arti¬ 
cle  in  the  Constitution,  however  inconvenient  it  may  prove 
by  experience,  can  only  be  altered  by  altering  the  Constitu¬ 
tion  itself,  which  manifestly  is  a  thing  which  ought  not  to 


94 


be  done  often.  When  regulated  by  law,  it  can  easily  be  occa¬ 
sionally  altered  so  as  best  to  spit  the  conveniences  of  the 
people.”  El.  Deb.,  Yol.  4,  p.  144.  That  the  Constitution 
deals  only  with  the  structure  of  government,  the  delegation 
of  powers  and  the  distribution  of  them,  was  stated  by  Mr. 
Chief  Justice  Marshall  in  Marbury  v.  Madison,  1  Cranch, 
137  (1803)  : 

“That  the  people  have  an  original  right  to  establish, 
for  their  future  government,  such  principles  as,  in  their 
opinion,  shall  most  conduce  to  their  OAvn  happiness,  is 
the  basis,  on  which  the  whole  American  fabric  has  been 
erected.  The  exercise  of  this  original  right  is  a  very 
great  exertion ;  nor  can  it,  nor  ought  it  to  be  frequently 
repeated.  The  principles,  therefore,  so  established,  are 
deemed  fundamental.  And  as  the  authority,  from 
which  they  proceed,  is  supreme,  and  can  seldom  act,  they 
are  designed  to  be  permanent. 

“This  original  and  supreme  will  organizes  the  gov¬ 
ernment,  and  assigns,  to  different  departments,  their  re¬ 
spective  powers.  It  may  either  stop  here;  or  establish 
certain  limits  not  to  be  transcended  by  those  depart¬ 
ments. 

“The  government  of  the  United  States  is  of  the  lat¬ 
ter  description.  The  powers  of  the  legislature  are  de¬ 
fined,  and  limited;  and  that  those  limits  may  not  be 
mistaken,  or  forgotten,  the  constitution  is  written.” 

In  Van  Horn  v.  Dorrance,  2  Dali.  304,  308  (1795),  Mr. 
Justice  Patterson  expressed  the  same  view : 

“What  is  a  Constitution?  It  is  the  form  of  gov¬ 
ernment,  delineated  by  the  mighty  hand  of  the  people, 
in  which  certain  first  principles  of  fundamental  laws 
are  established.  The  Constitution  is  certain  and  fixed; 
it  contains  the  permanent  will  of  the  people,  and  is  the 
supreme  law  of  the  land.” 

A  Constitution  is  variouslv  defined  bv  text  writers,  but 
they  all  agreed  as  to  its  fundamental  nature.  The  follow- 


95 


ing  distinction  between  fundamental  principles  and  ordinary 
laws  may  be  quoted  from  Jameson’s  Constitutional  Conven¬ 
tions,  4th  Ed.,  Sec.  85 : 

“Before  proceeding  to  the  task  indicated,  however, 
it  may  be  useful  to  ascertain  with  precision  the  distinc¬ 
tion  between  a  constitution  or  fundamental  ordinance , 
and  an  ordinary  municipal  law.  Both  must  be  denom¬ 
inated  laws,  since  they  are  equally  ‘rules  of  action  laid 
down  or  prescribed  by  a  superior.’  Ordinary  laws  are 
enactments  and  rules  for  the  government  of  civil  con¬ 
duct,  promulgated  by  the  legislative  authority  of  a  state, 
or  deduced  from  long-established  usage.  It  is  an  im¬ 
portant  characteristic  of  such  laws  that  they  are  tenta- 
tory,  occasional,  and  in  the  nature  of  temporary  ex¬ 
pedients.  Fundamental  laws,  on  the  other  hand,  in 
politics,  are  expressions  of  the  sovereign  will  in  relation 
to  the  structure  of  the  government,  the  extent  and  dis¬ 
tribution  of  its  powers,  the  modes  and  principles  of  its 
operation,  and  the  apparatus  of  checks  and  balances 
proper  to  insure  its  integrity  and  continued  existence. 
Fundamental  laws  are  primary,  being  the  commands  of 
the  sovereign  establishing  the  governmental  machine, 
and  the  most  general  rules  for  its  operation.  Ordinary 
laws  are  secondary,  having  reference  to  the  exigencies 
of  time  and  place  resulting  from  the  ordinary  working 
of  the  machine.  Fundamental  laws  precede  ordinary 
laws  in  point  of  time,  and  embrace  the  settled  policy  of 
the  state.  Ordinary  laws,  are  the  creatures  of  the  sov¬ 
ereign,  acting  through  a  body  of  functionaries  existing 
only  by  virtue  of  the  fundamental  laws  and  express,  as 
we  have  said,  the  expedient,  or  the  right  viewed  as  the 
expedient,  under  the  varying  circumstances  of  time  and 
place.” 

In  Southern  Pacific  Co.  v.  Jensen,  244  U.  S.  205,  227 
(1910),  Mr.  Justice  Pitney  observed: 

“At  this  late  day  it  ought  not  to  be  necessary  to 
repeat  that  the  object  of  the  framers  of  that  instrument 


96 


was  to  lay  the  foundation  of  a  government,  to  set  up  its 
framework  and  to  establish  merely  the  general  princi¬ 
ples  by  which  it  was  to  be  animated.” 

This  Constitution  therefore  is  a  framework  of  govern¬ 
ment  and  the  embodiment  of  the  fundamental  principles 
upon  which  it  is  established.  It  is  to  this  Constitution  that 
Congress  is  authorized  to  make  proposals  of  amendment. 
The  proposals  may  not  be  other  than  amendments,  and  the 
character  of  them  should  be  harmonious  with  the  Con¬ 
stitution  itself.  By  an  amendment  the  identity  or  purpose 
of  the  instrument  is  not  designed  to  be  changed,  but  only  a 
defective  quality  in  it  that  has  become  apparent  by  the  opera¬ 
tion  of  government  under  it.  The  Constitution  must  still 
be  this  Constitution  after  it  is  amended.  The  words  “this 
Constitution”*  were  substituted  for  “Articles  of  Union”  in 
the  Federal  Convention.  This  substitution  did  not  change 
the  intent.  This  Constitution  is  still  the  Articles  of  Union 
and  it  is  this  Constitution  in  its  several  articles  that  is 
amendable.  Furthermore,  it  is  a  limited  Constitution  and 
must  remain  a  limited  Constitution  after  amendment.  It 
would  be  the  greatest  absurdity  to  contend  that  there  was  a 
purpose  to  create  a  limited  government  and  at  the  same  time 
to  confer  upon  that  government  a  power  to  do  away  with  its 
own  limitations.  It  is  only  under  this  Constitution  that  the 
amending  function  may  be  exercised,  and  when  the  limita¬ 
tions  of  this  Constitution  are  overridden,  even  the  authority 
to  amend  ceases,  for  this  Constitution  would  then  no  longer 
exist. 

In  Marbury  v.  Madison ,  supra,  Mr.  Chief  Justice  Mar¬ 
shall  emphasizes  the  importance  and  the  permanency  of  con¬ 
stitutional  limitations. 

“To  what  purpose  are  powers  limited,  and  to  what 
purpose  is  that  limitation  committed  to  writing,  if  these 


97 


limits  may,  at  any  time,  be  passed  by  those  intended  to 
be  restrained?  The  distinction,  between  a  government 
with  limited  and  unlimited  powers,  is  abolished,  if  those 
limits  do  not  confine  the  persons  on  whom  they  are 
imposed,  and  if  acts  prohibited  and  acts  allowed,  are  of 
equal  obligation.  *  *  * 

“This  doctrine  would  subvert  the  verv  foundation 
of  all  written  constitutions.  It  would  declare  that  an 
act,  which,  according  to  the  principles  and  theory  of 
our  government,  is  entirely  void ;  is  yet,  in  practice,  com¬ 
pletely  obligatory.  It  would  declare,  that  if  the  legis¬ 
lature  shall  do  what  is  expressly  forbidden,  such  act, 
notwithstanding  the  express  prohibition,  is  in  reality 
effectual.  It  would  be  giving  to  the  legislature  a  prac¬ 
tical  and  real  omnipotence,  with  the  same  breath  which 
professes  to  restrict  their  powers  within  narrow  limits. 
It  is  prescribing  limits,  and  declaring  that  those  limits 
may  be  passed  at  pleasure.” 


(b)  “Deem  it  Necessary.” 

Article  V  provides  that  “Congress,  whenever  two-thirds 
of  both  Houses  shall  deem  it  necessary,  shall  propose  Amend¬ 
ments  to  this  Constitution.”  Reference  has  alreadv  been 

«/ 

made  to  the  Pennsylvania  Constitution  of  1776  and  the 
Massachusetts  Constitution  of  1780.  The  corresponding 
phrase  in  the  former  reads,  “as  there  appear  an  absolute 
necessity  of  amending  any  article  of  the  Constitution,”  and 
in  the  latter,  “such  alterations  as  from  experience  shall  be 
found  necessary.”  The  word  “necessary”  in  Article  V  was 
evidently  taken  from  these  prior  examples  of  its  use  in  the 
amendatory  provisions  of  the  Pennsylvania  and  Massachu¬ 
setts  Constitutions.  The  word  must  be  given  some  signifi¬ 
cance  in  Article  V.  The  doctrine  of  the  defendants,  how¬ 
ever,  gives  no  more  effect  to  it  than  to  the  word  amendment. 


9S 


The  defendants  claim  that  Congress  at  any  time  has  the 
power  to  propose  any  proposition  as  an  Amendment,  and 
that  the  enactment  of  the  proposal  constitutes  a  determina¬ 
tion  of  the  necessity  of  it.  Thus  a  wide  door  is  opened  to 
speculation  upon  new  theories  of  government,  and  the 
amending  function  is  converted  into  a  means  of  trying  out 
such  theories  in  the  form  of  constitutional  experimentations. 

Mr.  Chief  Justice  Marshall,  in  McCulloch  v.  Maryland , 
supra,  discussed  at  length  the  meaning  of  the  word  “neces¬ 
sary”  in  Art.  1,  Sec.  8,  Par.  19.  He  remarked  with  reference 
to  it :  “This  word  then,  like  others,  is  used  in  various 
senses;  and,  in  its  construction,  the  subject,  the  context,  the 
intention  of  the  person  using  them,  are  all  to  be  taken  into 
view.”  He  concluded  the  argument  on  this  point  with  the 
statement  of  that  rule  so  frequently  cited :  “Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and 
all  means  which  are  appropriate,  which  are  plainly  adapted 
to  that  end,  which  are  not  prohibited,  but  consist  with  the 
letter  and  spirit  of  the  Constitution,  are  constitutional.” 
While  it  is  not  the  purpose  of  this  brief  to  urge  any  test  of 
constitutionality  in  this  cause,  no  better  one  suggests  itself 
as  to  the  measure  of  a  valid  amendment.  Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and 
all  proposals  of  Amendment  which  are  appropriate,  which 
are  plainly  adapted  to  that  end,  which  are  not  prohibited, 
but  consist  with  the  letter  and  spirit  of  the  Constitution  are 
valid. 

The  word  “necessary”  in  Article  V  implies  that  an 
amendment  is  not  a  matter  of  speculation.  In  the  First 
Congress  it  was  suggested  that  a  vote  upon  the  necessity  of 
an  amendment  should  precede  the  vote  upon  the  proposal 
itself.  The  suggestion  was  not  followed,  but,  nevertheless, 
it  reflected  the  importance  attached  to  the  word  at  that  time. 


99 


Many  of  the  members  of  the  First  Congress  had  participated 
either  in  the  Federal  or  State  Conventions.  Their  debates 
upon  the  submission  of  the  first  ten  Amendments  clearly 
show  that  they  understood  an  amendment  to  be  the  correc¬ 
tion  of  a  defect  in  the  Constitution  which  should  disclose 
itself  in  the  operation  of  the  government,  and  that  the  neces¬ 
sity  for  amendment  could  only  be  determined  by  experience. 
The  following  remarks  are  taken  from  these  debates.  Gales 
&  Seaton’s  Debates,  Vol.  1: 

Mr.  White  :  “I  think  a  majority  of  the  people  who 
have  ratified  the  constitution,  did  it  under  the  expecta¬ 
tion  that  Congress  would,  at  some  convenient  time,  ex¬ 
amine  its  texture  and  point  out  where  it  was  defective, 
in  order  that  it  might  be  judiciously  amended.  Whether, 
while  we  are  without  experience,  amendments  can  be 
digested  in  such  a  manner  as  to  give  satisfaction  to  a 
constitutional  majority  of  this  House,  I  will  not  pre¬ 
tend  to  say.”  p.  445. 


Mr.  Sherman  :  “For  my  part,  I  question  if  any 
alteration  which  caw  be  now  proposed  would  be  an 
amendment,  in  the  true  sense  of  the  word;  but  never¬ 
theless,  I  am  willing  to  let  the  subject  be  introduced. 
*  *  *  The  provision  for  amendments  made  in  the 

fifth  article  of  the  constitution,  was  intended  to  facili¬ 
tate  the  adoption  of  those  which  experience  should  point 
out  to  be  necessary.”  pp.  445,  686. 

Mr.  Jackson  :  “When  the  propriety  of  making 
amendments  shall  be  obvious  from  experience,  I  trust 
there  will  be  virtue  enough  in  my  country  to  make  them. 

Let  the  constitution  have  a  fair  trial;  let  it 
be  examined  by  experience,  discover  by  that  test  what  its 
errors  are,  and  then  talk  of  amending;  but  to  attempt 
it  now  is  doing  it  at  a  risk,  which  is  certainly  impru¬ 
dent.  *  *  * 


100 


“Why  will  gentlemen  press  us  to  propose  amend¬ 
ments,  while  we  are  without  experience ?  *  *  *  The 

imperfections  of  the  Government  are  now  unknown;  let 
it  have  a  fair  trial,  and  I  will  be  bound  they  show  them¬ 
selves  ;  then  we  can  tell  where  to  apply  the  remedy,  so  as 
to  secure  the  great  object  we  are  aiming  at.”  pp.  442, 
443,  461. 

Mr.  Ames  :  “Mr.  Ames  begged  to  know  the  reasons 
upon  which  amendments  were  founded.  He  hoped  it 
was  not  purely  to  gratify  an  indigested  opinion ;  but  in 
every  part  where  they  retouch  the  edifice  it  was  with  an 
intention  of  improving  the  structure;  they  certainly 
could  not  think  of  making  alterations  for  the  worse.” 
p.  751. 

Mr.  Yining:  “Though  the  State  I  represent  had 
the  honor  of  taking  the  lead  in  the  adoption  of  this  con¬ 
stitution,  and  did  it  by  a  unanimous  vote ;  and  although 
I  have  the  strongest  predilection  for  the  present  form  of 
Government,  yet  I  am  open  to  information,  and  willing 
to  be  convinced  of  its  imperfections.  If  this  be  done,  I 
shall  cheerfully  assist  in  correcting  them.  But  I  cannot 
think  this  a  proper  time  to  enter  upon  the  subject; 
*  *  *  for  want  0f  experience,  we  are  as  likely  to  do 

injury  by  our  prescriptions  as  good.”  p.  448. 

Mr.  Jackson  :  “I  am  of  opinion  we  ought  not  to  be 
in  a  hurry  with  respect  to  altering  the  constitution.  For 
my  part,  I  have  no  idea  of  speculating  in  this  serious 
manner  on  theory.  If  I  agree  to  alterations  in  the  mode 
of  administering  this  Government,  I  shall  like  to  stand 
on  the  sure  ground  of  experience ,  and  not  he  treading 
air.  What  experience  have  roe  had  of  the  good  or  had 
qualities  of  this  constitution ?  Can  any  gentleman  affirm 
to  me  one  proposition  that  is  a  certain  and  absolute 
amendment ?  I  deny  that  he  can.  Our  constitution,  sir, 
is  like  a  vessel  just  launched,  and  lying  at  the  wharf; 


IOI 


she  is  untried,  you  can  hardly  discover  any  one  of  her 
properties.  It  is  not  known  how  she  will  answer  her 
helm,  or  lay  her  course;  whether  she  will  bear  with 
safety  the  precious  freight  to  be  deposited  in  her  hold. 
But,  in  this  state,  will  the  prudent  merchant  attempt 
alterations?  Will  he  employ  workmen  to  tear  off  the 
planking  and  take  asunder  the  frame?  He  certainly 
will  not.  Let  us,  gentlemen,  fit  out  our  vessel,  set  up 
her  masts,  and  expand  her  sails,  and  be  guided  by  the 
experiment  in  our  alterations.  If  she  sails  upon  an  un¬ 
even  keel,  let  us  right  her  by  adding  weight  where  it  is 
wanting.  In  this  way,  we  may  remedy  her  defects  to 
the  satisfaction  of  all  concerned ;  but  if  we  proceed  now 
to  make  alterations,  we  may  deface  a  beauty,  or  deform 
a  well  proportioned  piece  of  workmanship.”  pp.  441, 
442. 

In  the  present  cause,  the  defects  which  the  so-called 
Eighteenth  Amendment  are  designed  to  cure  are  not  defects 
in  the  operation  of  the  Federal  Government,  for  the  Federal 
Government  is  entirely  without  power  over  the  subject  mat¬ 
ter  of  the  so-called  Amendment  and  has  never  operated  in 
respect  to  the  subject  matter.  Neither  has  Congress  had 
any  experience  whatever,  either  in  exercising  the  power  of 
police  or  in  dealing  with  the  subject  matter  within  the  ter¬ 
ritorial  limits  of  the  States.  Congress,  therefore,  cannot 
constitutionally  “deem  it  necessary”  to  propose  an  amend¬ 
ment  to  this  Constitution  so  utterly  unrelated  to  the  opera¬ 
tion  of  the  Federal  Government  thereunder.  Necessity  for 
amendment  can  only  arise  in  consequence  of  defects  in  the 
operation  of  government  under  the  Constitution.  There  can 
be  no  necessity  beyond  the  scope  of  the  Constitution. 


102 


( 9 )  Prior  Amendments. 

An  examination  of  the  prior  amendments  to  the  Con¬ 
stitution  will  disclose  that  all  of  them  have  been  declaratory 
and  interpretative  or  have  had  reference  to  a  power  or  to  a 
subject  matter  dealt  with  in  the  instrument  itself.  They 
have  all  been  within  the  scope  of  the  Constitution.  The  first 
eleven  declared  the  meaning  of  the  original  document  as  it 
was  understood  by  those  who  framed  and  ratified  it;  the 
twelfth  related  to  a  specific  article  dealing  with  the  election 
of  the  Executive;  the  thirteenth,  fourteenth  and  fifteenth 
broadly  concerned  a  great  constitutional  compromise  which 
appears  in  several  articles;  they  constituted  a  new  Magna 
Charta  and  recorded  the  inexorable  decree  of  civil  war ;  the 
sixteenth  modified  the  application  of  the  taxing  power,  and 
the  seventeenth  changed  the  method  of  electing  Senators. 
They  were  all  proposed  and  ratified  as  corrections  of  errors 
that  developed  in  the  course  of  the  actual  operation  of  the 
Federal  Government. 


(A)  First  Ten  Amendments. 

The  first  ten  amendments  were  proposed  by  the  First 
Congress,  on  September  25,  1789.  They  had  their  origin  in 
the  purpose  to  fix  definite  limitations  upon  the  general  gov¬ 
ernment.  This  purpose  was  to  prevent  encroachments  upon 
the  powers  of  the  States.  In  the  discussion  upon  the  adop¬ 
tion  of  the  Constitution,  the  Federalists  had  claimed  that  the 
general  government  was  definitely  limited  by  the  terms  of  the 
Constitution  and  that  all  powers  not  expressly  delegated 
therein  were  reserved  to  the  respective  States.  The  Anti- 
Federalists  were  in  doubt  and  contended  that  if  these  limita- 


103 


tions  were  intended  the  Constitution  should  plainly  state 
that  intent.  In  so  far,  therefore,  as  the  Constitution  failed 
to  set  forth  the  exact  limitations  which  were  intended  by  all 
parties,  these  Amendments  may  be  said  to  be  a  correction  of 
an  error  in  the  process.  The  Constitution  was  not  changed 
in  any  respect  by  their  adoption.  They  neither  increased 
nor  diminished  any  power.  They  have  always  been  con¬ 
strued  as  limitations  upon  the  powers  of  the  Federal  Gov¬ 
ernment,  but  they  imposed  no  further  limitations  than  those 
intended  by  a  correct  construction  of  the  original  document. 
These  Amendments  are  regarded  as  a  contemporaneous  ex¬ 
position  of  the  original  instrument  and  a  part  of  it. 

Barron  v.  Baltimore,  7  Pet.  243  (1833). 

Spies  v.  Illinois,  123  U.  S.  131  (1887). 

Davis  v.  Texas ,  139  U.  S.  651  (1890). 

O’Neil  v.  Vermont,  144  U.  S.  323  (1891). 

Miller  v.  Texas,  153  U.  S.  535  (1893). 

Brown  v.  New  Jersey,  175  U.  S.  172  (1899). 

Capital  City  Dairy  Co.  v.  Ohio,  183  TJ.  S.  238  (1901). 


(B)  Eleventh  Amendment. 

The  Eleventh  Amendment  reads :  “The  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  bv  citizens  of  another  State,  or  bv  citi- 
zens  or  subjects  of  any  foreign  State.”  This  Amendment 

was  due  to  a  construction  of  the  Constitution  other  than  had 

\ 

been  intended  by  its  framers.  Art.  3,  Sec.  2,  provides  that 
the  judicial  power  shall  extend  to  controversies  “between  a 
State  and  citizens  of  another  State.”  In  the  case  of  Chis- 


104 


holm  v.  Georgia,  2  Dali.  419  (1793),  that  clause  was  con¬ 
strued  to  include  suits  by  a  citizen  of  one  State  against  an¬ 
other  State.  It  Tvas  the  general  understanding  at  the  time 
of  the  adoption  of  the  Constitution,  however,  that  that  clause 
was  restricted  to  suits  by  a  State  against  citizens  of  another 
State.  In  so  far,  therefore,  as  the  Constitution  failed  to 
express  accurately  the  intent  and  purpose  of  those  who 
framed  and  adopted  it,  this  Amendment  likewise  was  the 
correction  of  an  error  in  the  process. 

Chief  Justice  Marshall,  in  Cohens  v.  Virginia,  G  Wheat. 
264  ( 1821 ) ,  said  in  reference  to  this  Amendment : 

“It  is  a  part  of  our  history,  that,  at  the  adoption 
of  the  constitution,  all  the  States  were  greatly  indebted ; 
and  the  apprehension  that  these  debts  might  be  prose¬ 
cuted  in  the  federal  Courts,  formed  a  very  serious  objec¬ 
tion  to  that  instrument.  Suits  were  instituted ;  and  the 
Court  maintained  its  jurisdiction.  The  alarm  was  gen¬ 
eral  ;  and,  to  quiet  the  apprehensions  that  were  so  exten¬ 
sively  entertained,  this  amendment  was  proposed  in 

Congress,  and  adopted  by  the  State  legislatures.” 

v 

Mr.  Justice  Campbell  in  Florida  v.  Georgia,  17  How. 
478  (1854),  fully  explains  the  corrective  purpose  of  this 
Amendment : 

“While  the  constitution  was  under  discussion,  Gen¬ 
eral  Hamilton  (Federalist,  81)  said,  That  it  is  in  the 
nature  of  sovereignty  not  to  be  amenable  to  the  suit  of 
an  individual  without  its  consent,’  and  contended  That 
to  ascribe  to  the  federal  courts,  by  mere  implica¬ 
tion,  and  in  destruction  of  a  preexisting  right  of  the 
state  governments,  a  power  which  would  involve  such 
consequences,  would  be  altogether  forced  and  unwar¬ 
rantable.’  So,  Mr.  Madison,  replying  to  the  vehement 
and  prophetic  denunciations  of  Patrick  Henry,  in  a  care¬ 
ful  exposition  of  the  judiciary  clause,  calmed  the  Vir- 


105 

ginia  convention  by  assuring  it  that  ‘it  is  not  in  the 
power  of  individuals  to  call  any  State  into  court.  The 
only  operation  the  clause  can  have  is,  that  if  a  State 
should  wish  to  bring  a  suit  against  a  citizen,  it  must  be 
brought  in  a  federal  court.’  And  the  late  Chief  Justice 
Marshall  supported  him,  saying :  ‘With  respect  to  dis¬ 
putes  between  a  State  and  citizens  of  another  State,  its 
jurisdiction  has  been  decried  with  unusual  vehemence. 
I  hope  no  gentleman  will  think  a  State  will  be  called  at 
the  bar  of  a  federal  court.  It  is  not  rational  to  suppose 
that  the  sovereign  power  shall  be  dragged  before  a 
court.  The  intent  is  to  enable  States  to  recover  claims 
of  individuals  residing  in  other  States.  I  contend  this 
construction  is  warranted  by  the  words.’  Virginia 
Deb.,  387,  405,  406. 

“When  these  assurances  from  the  most  accredited 
friends  of  the  new  government  were  disappointed,  by 
the  institution  of  suits  in  this  court  against  several  of 
the  States,  by  individual  plaintiffs,  shortly  after  the 
adoption  of  the  constitution,  a  strong  sentiment  of 
wrong  was  felt,  and  corresponding  indignation  ex¬ 
pressed.  This  indignation  was  not  occasioned  by  any 
apprehension  of  consequenecs  to  the  States  as  debtors, 
but  by  the  fact  that  they  supposed  their  rights  to  be 
violated.  The  history  will  bear  no  other  interpreta¬ 
tion.” 


(C)  Twelfth  Amendment. 

The  original  Constitution,  in  Art.  2,  Sec.  3,  directed  in 
detail  the  manner  in  which  the  President  of  the  United 
States  should  be  elected.  The  historic  contest  between 
Mr.  Jefferson  and  Mr.  Burr  for  that  office  in  1800-1801, 
disclosed  a  defect  in  the  operation  of  the  electoral  sys¬ 
tem.  This  defect  was  remedied  by  the  Twelfth  Amend¬ 
ment.  This  Amendment,  therefore,  like  those  that  preceded 


io 6 


it,  was  the  correction  of  an  error  committed  in  the 
process.  Through  actual  experience  in  the  operation  of  the 
government  one  of  the  structural  provisions  of  the  Constitu¬ 
tion  had  been  proven  defective.  There  was  no  diminution 
or  enlargement  of  powers  to  Nation  or  State.  The  Amend¬ 
ment  was  purely  corrective. 


( D )  Thirteenth  Amendment. 


“Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  whereof  the  parties  shall  have  been 
dulv  convicted  shall  exist  within  the  United  States,  or  anv 
place  subject  to  their  jurisdiction.”  The  Civil  War  terminated 
slavery  and  all  incidents  of  slavery.  It  gave  to  the  colored 
man  the  status  of  a  freeman  and  placed  him  upon  an  equal¬ 
ity  with  others  under  the  law.  Force  alone  brought  about 
these  results.  The  Civil  War  amendments  simply  recorded 
these  results  and  secured  to  the  colored  man  those  rights 
that  are  inseparable  from  the  status  of  freemen, — the  rights 
of  equality  under  the  law.  Equality  under  the  law  is  a  prin¬ 
ciple  of  republicanism.  These  three  Amendments  must  be 
considered  together  and  interpreted  from  an  historical 
point  of  view.  In  speaking  of  them,  Mr.  Justice  Miller  in 
the  Slaughter-House  Cases ,  83  U.  S.  36  (1872),  said: 


“We  repeat,  then,  in  the  light  of  this  recapitula¬ 
tion  of  events,  almost  too  recent  to  be  called  history,  but 
which  are  familiar  to  us  all;  and  on  the  most  casual 
examination  of  the  language  of  these  amendments,  no 
one  can  fail  to  be  impressed  with  the  one  pervading  pur¬ 
pose  found  in  them  all,  lying  at  the  foundation  of  each, 
and  without  which  none  of  them  would  have  been  even 
suggested;  we  mean  the  freedom  of  the  slave  race,  the 
security  and  firm  establishment  of  that  freedom,  and 


107 


the  protection  of  the  newly  made  freeman  and  citizen 
from  the  oppressions  of  those  who  had  formerly  exer¬ 
cised  unlimited  dominion  over  him.”  *  *  *  “Fair¬ 

ly  construed,  these  Amendments  may  be  said  to  rise  to 
the  dignity  of  a  new  Magna  Charta.  The  thirteenth 
blotted  out  slavery  and  forbade  forever  its  restoration. 
It  struck  the  fetters  from  four  millions  of  h,uman  beings 
and  raised  them  at  once  to  the  sphere  of  freemen.  This 
was  an  act  of  grace  and  justice  performed  by  the  Na¬ 
tion.  Before  the  war  it  could  have  been  done  only  by  the 
States  where  the  institution  existed,  acting  severally 
and  separately  from  each  other.  The  power  then  rested 
wholly  with  them.  In  that  way,  apparently,  such  a 
result  could  never  have  occurred.  The  power  of  Con¬ 
gress  did  not  extend  to  the  subject  except  in  the  Ter¬ 
ritories.” 

Slavery  had  been  dealt  with  in  the  orginal  Constitution. 

Art.  1,  Sec.  2,  Par.  3 ;  Art.  1,  Sec.  9,  Par.  1 ;  Art.  4,  Sec.  2 ; 

Art.  5.  In  1772  it  had  been  declared  contrarv  to  the  laws  of 

•/ 

England  by  Lord  Mansfield,  in  Somerset  v.  Stewart,  20 
State  Trials,  1,  82;  and  in  1781  it  had  been  declared  con¬ 
trary  to  the  Massachusetts  Declaration  of  Eights  by  a 
Massachusetts  Court.  It  was  one  of  the  compromises  of  the 

Constitution  and  so  understood  in  the  Federal  and  State 
Conventions.  In  the  Massachusetts  Convention,  Mr. 
Thompson  inquired:  “Mr.  President,  shall  it  be  said  that 
after  we  have  established  our  own  independence  and  free¬ 
dom,  we  make  slaves  of  others?”  El.  Deb.,  Vol.  2,  p.  107. 
In  the  same  Convention  Mr.  Heath  said : 

“If  we  ratifv  the  Constitution,  shall  we  do  any- 
thing  by  our  act  to  hold  the  blacks  in  slavery?  or  shall 
we  become  the  partakers  of  other  men’s  sins?  I  think, 
neither  of  them.  Each  state  is  sovereign  and  independ¬ 
ent  to  a  certain  degree,  and  the  states  have  a  right,  and 
they  will  regulate  their  own  internal  affairs  as  to  them- 


selves  appears  proper;  and  shall  we  refuse  to  eat,  or  to 
drink,  or  to  be  united,  with  those  who  do  not  think,  or 
act,  just  as  we  do?  Surely  not.  We  are  not,  in  this 
case,  partakers  of  other  men’s  sins;  for  in  nothing  do 
we  voluntarily  encourage  the  slavery  of  our  fellowmen. 
A  restriction  is  laid  on  the  federal  government,  which 
could  not  be  avoided,  and  a  union  take  place.  The  fed¬ 
eral  Convention  went  as  far  as  they  could.”  El.  Deb., 
Vol.  2,  p.  115. 

Mr.  Iredell,  in  North  Carolina,  remarked  in  reference 
to  the  same  subject: 

“For  my  part,  were  it  practicable  to  put  an  end  to 
the  importation  of  slaves  immediately,  it  would  give  me 
the  greatest  pleasure ;  for  it  certainly  is  a  trade  utterly 
inconsistent  with  the  rights  of  humanity,  and  under 
which  great  cruelties  have  been  exercised.  When  the  en¬ 
tire  abolition  of  slavery  takes  place,  it  will  be  an  event 
which  must  be  pleasing  to  every  generous  mind,  and 
every  friend  of  human  nature;  but  we  often  wish  for 
things  which  are  not  attainable.”  El.  Deb.,  Vol.  4,  p. 
100. 

The  subject  of  slavery  was  compromised  not  only  at 
the  time  of  the  framing  of  the  Constitution,  but  continued 
to  be  compromised  in  Congress  for  half  a  century.  It  occa¬ 
sioned  continuous  political  strife,  threatened  the  existence 
of  the  Union,  and  furnished  the  underlying  cause  of  the 
Civil  War.  At  the  conclusion  of  that  War  the  complete 
elimination  of  the  cause  of  so  much  evil  was  necessary  to 
the  existence  of  the  Nation.  As  the  Constitution  breathes 
the  spirit  of  the  freedom  and  equality  of  the  Declaration  of 
Independence,  the  fact  that  the  subject  of  slavery  was  com¬ 
promised  in  the  Federal  Convention  of  1787  must  now  be 
regarded  as  an  error.  It  was  so  recognized,  even  at  the 
time,  but  circumstances  made  that  error  unavoidable.  That 
error  committed  in  the  process  was  cured  by  force  of  arms. 


109 


Thereafter  the  result  of  military  force  was  recorded  through 
these  Amendments.  These  Amendments  would  probably 
never  have  been  adopted  by  the  Legislatures  of  three-fourths 
of  the  several  States  had  not  the  political  power  of  Con¬ 
gress,  backed  up  by  the  full  military  strength  of  the  Nation, 
compelled  their  ratification.  It  is  a  matter  of  history  that 
the  Federal  Government  declined  to  treat  as  restored  to 
their  full  participation  in  the  government  of  the  Union  the 
States  which  had  been  in  insurrection  until  they  ratified 
those  articles  by  a  formal  vote  of  their  legislative  bodies. 
It  was  therefore  force,  and  force  alone,  that  placed  these 
Amendments  in  the  Federal  Constitution,  and  the  law  of 
self-preservation  was  the  justification  of  the  course  pursued. 


(E)  Fourteenth  Ajmendment. 

(1)  “ All  persons  born  or  naturalized  in  the  United 
States  and  subject  to  the  jurisdiction  thereof  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside.” 
With  reference  to  this  clause  of  the  Fourteenth  Ajnendment, 
Mr.  Justice  Miller  in  the  Slaughter-House  Cases ,  supra, 
said : 

“The  1st  section  of  the  14th  article,  to  which  our 
attention  is  more  specially  invited,  opens  with  a  defini¬ 
tion  of  citizenship — not  only  citizenship  of  the  United 
States,  but  citizenship  of  the  States.  No  such  defini¬ 
tion  was  previously  found  in  the  Constitution,  nor  had 
any  attempt  been  made  to  define  it  by  Act  of  Congress. 
It  had  been  the  occasion  of  much  discussion  in  the 
courts,  by  the  executive  departments  and  in  the  public 
journals.  It  had  been  said  by  eminent  judges  that  no 
man  was  a  citizen  of  the  United  States  except  as  he  was 
a  citizen  of  one  of  the  States  composing  the  Union. 


no 


Those,  therefore,  who  had  been  born  and  resided  always 
in  the  District  of  Columbia  or  in  the  Territories,  though 
within  the  United  States,  were  not  citizens.  Whether 
this  proposition  was  sound  or  not,  had  never  been  judi¬ 
cially  decided.  But  it  had  been  held  by  this  court,  in 
the  celebrated  Dr  eel  Scott  case,  only  a  few  years  before 
the  outbreak  of  the  civil  war,  that  a  man  of  African 
descent,  whether  a  slave  or  not,  was  not  and  could  not 
be  a  citizen  of  a  State  or  of  the  United  States.  This 
decision,  while  it  met  the  condemnation  of  some  of  the 
ablest  statesmen  and  constitutional  lawyers  of  the 
country  had  never  been  overruled;  and,  if  it  was  to  be 
accepted  as  a  constitutional  limitation  of  the  right  of 
citizenship,  then  all  the  negro  race  who  had  recently 
been  made  freemen  were  still,  not  only  not  citizens,  but 
were  incapable  of  becoming  so  by  anything  short  of  an 
amendment  to  the  Constitution. 

“To  remove  this  difficulty  primarily,  and  to  estab¬ 
lish  a  clear  and  comprehensive  definition  of  citizenship 
which  should  declare  what  should  constitute  citizenship 
of  the  United  States  and  also  citizenship  of  a  State,  the 
1st  clause  of  the  1st  section  was  framed.” 

(2)  “No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States.”  Mr.  Justice  Washington,  in  Corfield  v. 
Coryell,  4  Wash.  C.  C.  380,  defined  the  privileges  and  immu¬ 
nities  of  citizens  of  the  United  States. 

“We  feel  no  hesitation  in  confining  these  expres¬ 
sions  to  those  privileges  and  immunities  which  are  in 
their  nature  fundamental;  which  belong  of  right  to  the 
citizens  of  all  free  governments,  and  which  have  at  all 
times  been  enjoyed  by  the  citizens  of  the  several  States 
which  compose  this  Union,  from  the  time  of  their  be¬ 
coming  free,  independent,  and  sovereign.  What  those 
fundamental  principles  are,  it  would  perhaps  be  more 
tedious  than  difficult  to  enumerate.  They  may,  how¬ 
ever,  be  all  comprehended  under  tire  following  general 


heads :  Protection  by  the  government,  the  enjoyment 
of  life  and  liberty,  with  the  right  to  acquire  and  possess 
property  of  every  kind,  and  to  pursue  and  obtain  happi¬ 
ness  and  safety,  subject  nevertheless  to  such  restraints 
as  the  government  may  justly  prescribe  for  the  general 
good  of  the  whole.  The  right  of  a  citizen  of  one  State 
to  pass  through  or  to  reside  in  any  other  State,  for  pur¬ 
poses  of  trade,  agriculture,  professional  pursuits,  or 
otherwise;  to  claim  the  benefit  of  the  writ  of  habeas 
corpus ;  to  institute  and  maintain  actions  of  every  kind 
in  the  courts  of  the  State;  to  take,  hold,  and  dispose  of 
property,  either  real  or  personal;  and  an  exemption 
from  higher  taxes  or  impositions  than  are  paid  by  the 
citizens  of  the  other  State, — may  be  mentioned  as  some 
of  the  particular  privileges  and  immunities  of  citizens, 
which  are  clearly  embraced  by  the  general  description  of 
privileges  deemed  to  be  fundamental;  to  which  may  be 
added  the  elective  franchise  as  regulated  and  estab¬ 
lished  by  the  laws  or  constitution  of  the  State  in  which 
it  is  to  be  exercised.  These,  and  many  others  which 
might  be  mentioned,  are,  strictly  speaking,  privileges 
and  immunities;  and  the  enjoyment  of  them  by  the  citi¬ 
zens  of  each  State  in  every  other  State  was  manifestly 
calculated  The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  dif¬ 
ferent  States  of  the  Union.’  ” 

In  the  Slaughter-House  Cases ,  supra,  Mr.  Justice 
Swavne  said  in  reference  to  this  clause : 

“A  citizen  of  a  State  is  ipso  facto  a  citizen  of  the 
United  States.  ISTo  one  can  be  the  former  without  being 
also  the  latter ;  but  the  latter,  by  losing  his  residence  in 
one  State  without  acquiring  it  in  another,  although  he 
continues  to  be  the  latter,  ceases  for  the  time  to  be  the 
former.  ‘The  privileges  and  immunities’  of  a  citizen 
of  the  United  States  include,  among  other  things,  the 
fundamental  rights  of  life,  liberty  and  property,  and 
also  the  rights  which  pertain  to  him  by  reason  of  his 


1 12 


membership  of  the  Nation.  The  citizen  of  a  State  has 
the  same  fundamental  rights  as  a  citizen  of  the  United 
States,  and  also  certain  others,  local  in  their  character, 
arising  from  his  relation  to  the  State,  and  in  addition, 
those  which  belong  to  the  citizen  of  the  United  States, 
he  being  in  that  relation  also.  There  may  thus  be  a 
double  citizenship,  each  having  some  rights  peculiar 
to  itself.  It  is  only  over  those  which  belong  to  the  citi¬ 
zen  of  the  United  States  that  the  category  here  in  ques¬ 
tion  throws  the  shield  of  its  protection.” 

(3)  “Nor  shall  any  State  deprive  any  person  of  life, 
libei  ty  or  property,  without  due  process  of  law.”  Explain¬ 
ing  this  clause  in  the  Slaughter-House  Cases ,  supra ,  Mr. 
Justice  Swayne  said: 

“Life  is  the  gift  of  God,  and  the  right  to  preserve 
it  is  the  most  sacred  of  the  rights  of  man.  Liberty  is 
freedom  from  all  restraints  but  such  as  are  justly  im¬ 
posed  by  law.  Beyond  that  line  lies  the  domain  of 
usurpation  and  tyranny.  Property  is  everything  which 
has  an  exchangeable  value,  and  the  right  of  property 
includes  the  power  to  dispose  of  it  according  to  the  will 
of  the  owner.  Labor  is  property,  and  as  such  merits 
protection.  The  right  to  make  it  available  is  next  in 
importance  to  the  rights  of  life  and  liberty.  It  lies  to 
a  large  extent  at  the  foundation  of  most  other  forms  of 
property,  and  of  all  solid  individual  and  national  pros¬ 
perity.  ‘Due  process  of  law’  is  the  application  of  the 
law  as  it  exists  in  the  fair  and  regular  course  of  admin¬ 
istrative  procedure.  The  ‘equal  protection  of  the  laws’ 
places  all  upon  a  footing  of  legal  equality  and  gives  the 
same  protection  to  all  for  the  preservation  of  life, 
liberty  and  property,  and  the  pursuit  of  happiness. 
Corfield  v.  Coryell ,  4  Wash.  C.  C.,  380;  Lemmon  v. 
People,  2G  Barb.,  274,  and  20  N.  Y.,  626;  Conner  v. 
Elliott,  18  Hoav.,  593;  Murray  v.  McCarty,  2  Munf.  399; 
Campbell  x.  Morris,  3  Har.  &  McH.  554;  Towles’  case, 


5  Leigh,  748;  State  v.  Medbury ,  3  R.  I.,  142;  1  Tucker, 
Bl.,  145 ;  1  Cooley,  Bl.,  125,  128.”  *  *  * 

In  United  States  v.  Cruikshank,  92  U.  S.  542  (1875), 
Mr.  Justice  Waite  said  on  the  same  subject: 

“The  Fourteenth  Amendment  prohibits  a  State 
from  depriving  any  person  of  life,  liberty  or  property, 
without  due  process  of  law;  but  this  adds  nothing  to 
the  rights  of  one  citizen  as  against  another.  It  simply 
furnishes  an  additional  guaranty  against  any  encroach¬ 
ment  by  the  States  upon  the  fundamental  rights  which 
belong  to  every  citizen  as  a  member  of  society.  As  was 
said  by  Mr.  Justice  Johnson,  in  Bank  v.  Okely ,  4  Wheat. 
244,  it  secures  ‘The  individual  from  the  arbitrary  exer¬ 
cise  of  the  powers  of  government,  unrestrained  by  the 
established  principles  of  private  rights  and  distributive 
justice.’  ” 

(4)  “Nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.”  With  reference  to  this 
clause,  Mr.  Justice  Waite  in  United  States  v.  Cruikshank , 
supra ,  remarked: 

“The  Fourteenth  Amendment  prohibits  a  State 
from  denying  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws;  but  this  provision  does 
not,  any  more  than  the  one  which  precedes  it  and  which 
we  have  just  considered,  add  anything  to  the  rights 
which  one  citizen  has  under  the  Constitution  against 
another.  The  equality  of  the  rights  of  citizens  is  a  prin¬ 
ciple  of  republicanism.  Every  republican  government 
is  in  duty  bound  to  protect  all  its  citizens  in  the  enjoy¬ 
ment  of  this  principle,  if  within  its  power.  That  duty 
was  originally  assumed  by  the  States;  and  it  still  re¬ 
mains  there.  The  only  obligation  resting  upon  the 
United  States  is  to  see  that  the  States  do  not  deny  the 
right.  This  the  Amendment  guarantees,  but  no  more. 
The  power  of  the  National  Government  is  limited  to 
the  enforcement  of  this  guaranty.” 


( F )  Fifteenth  Amendment. 


“The  right  of  citizens  of  the  United  States  to  vote, 
shall  not  he  denied  or  abridged  by  the  United  States, 
or  by  any  State,  on  account  of  race,  color  or  previous 
condition  of  servitude.”  Mr.  Justice  Washington  in 
Corfield  v.  Coryell ,  supra ,  held  that  the  elective  fran¬ 
chise,  as  regulated  and  established  by  the  laws  or  constitu¬ 
tion  of  a  State  in  which  it  is  to  be  exercised,  was  one  of  the 
privileges  of  citizens  of  all  free  governments.  The  Federal 
Constitution,  however,  does  not  confer  the  right  of  suffrage ; 
it  accepts  the  electors  as  qualified  in  the  several  States  as 
its  own  electors.  The  Fifteenth  Amendment  does  not  con¬ 
fer  any  right  of  suffrage,  but  simply  imposes  an  inhibition 
that  was  consistent  with  free  government  and  personal 
equality  under  the  law, — an  inhibition  against  unjust  and 
unreasonable  discrimination  in  the  matter  of  suffrage. 

In  United  States  v.  Cruikshank,  supra,  Mr.  Justice 
Waite  clearly  explained  the  scope  of  this  Amendment : 

“In  Minor  v.  Happersett,  21  Wall.  178,  we  decided 
that  the  Constitution  of  the  United  States  has  not  con¬ 
ferred  the  right  of  suffrage  upon  any  one,  and  that  the 
United  States  have  no  voters  of  their  own  creation  in 
the  States.  In  U.  S.  v.  Reese,  just  decided  (ante,  563), 
we  hold  that  the  Fifteenth  Amendment  has  invested  the 
citizens  of  the  United  States  with  a  new  constitutional 
right,  which  is,  exemption  from  discrimination  in  the 
exercise  of  the  elective  franchise  on  account  of  race, 
color  or  previous  condition  of  servitude.  From  this  it 
appears  that  the  right  of  suffrage  is  not  a  necessary  at¬ 
tribute  of  national  citizenship  ;  but  that  exemption  from 
discrimination  in  the  exercise  of  that  right  on  account 
of  race,  etc.,  is.  The  right  to  vote  in  the  States  comes 
from  the  States;  but  the  right  of  exemption  from  the 
prohibited  discrimination  comes  from  the  United 


States.  The  first  has  not  been  granted  or  secured  by 
the  Constitution  of  the  United  States;  but  the  last  has 
been.” 


The  Civil  War  abolished  slavery  and  all  the  incidents 
of  slavery.  It  did  not  change  the  fundamental  relation  be¬ 
tween  State  and  Nation.  The  balance  between  State  and 
Federal  powers  was  not  disturbed  by  the  Thirteenth,  Four¬ 
teenth  and  Fifteenth  Amendments.  The  sovereign  powers 
of  a  State  were  still  reserved  and  possessed  as  original  and 
inherent.  And  the  sovereign  powers  of  the  Nation  were 
still  subject  to  constitutional  limitations. 


Mr.  Justice  Field,  in  Bartemeyer  v.  Iowa,  18  Wall.  129, 
138  (1874)  : 

“No  one  has  ever  pretended,  that  I  am  aware  of, 
that  the  Fourteenth  Amendment  interferes  in  any  re¬ 
spect  with  the  police  power  of  the  State.  Certainly  no 
one  who  desires  to  give  to  that  Amendment  its  legiti¬ 
mate  operation  has  ever  asserted  for  it  any  such  effect. 
It  was  not  adopted  for  any  such  purpose.” 


Mr.  Justice  Field,  in  Barbier  v.  Connolly,  113  U.  S.  27, 
31  (1885)  : 

“But  neither  the  Amendment, — broad  and  compre¬ 
hensive  as  it  is, — nor  any  other  Amendment,  was  de¬ 
signed  to  interfere  with  the  power  of  the  State,  some¬ 
times  termed  its  police  power,  to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education,  and 
good  order  of  the  people,  and  to  legislate  so  as  to  in¬ 
crease  the  industries  of  the  State,  develop  its  resources, 
and  add  to  its  wealth  and  prosperity.” 


•  1 1 6 

Mr.  Chief  Justice  Fuller,  in  In  re  Rahrer,  140  U.  S.  545, 
554  (1891)  : 

“The  power  of  the  State  to  impose  restraints  and 
burdens  upon  persons  and  property  in  conservation  and 
promotion  of  the  public  health,  good  order  and  pros¬ 
perity,  is  a  power  originally  and  always  belonging  to 
the  States,  not  surrendered  by  them  to  the  general  gov¬ 
ernment  nor  directly  restrained  by  the  Constitution  of 
the  United  States,  and  essentially  exclusive.  *  *  * 

“The  Fourteenth  Amendment,  in  forbidding  a  State 
to  make  or  enforce  any  law  abridging  the  privileges  or 
immunities  of  citizens  of  the  United  States,  or  to  de¬ 
prive  any  person  of  life,  liberty  or  property  without  due 
process  of  law,  or  to  deny  to  any  person  within  its  juris¬ 
diction  the  equal  protection  of  the  laws,  did  not  invest, 
and  did  not  attempt  to  invest,  Congress  with  power  to 
legislate  upon  subjects  which  are  within  the  domain 
of  state  legislation.” 

Mr.  Justice  Miller,  in  the  Slaughter-House  Cases ,  83 
U.  S.  36  (1872)  : 

“But  whatever  fluctuations  may  be  seen  in  the  his¬ 
tory  of  public  opinion  on  this  subject  during  the  period 
of  our  national  existence,  we  think  it  will  be  found  that 
this  court ,  so  far  as  its  function  required ,  has  always 
held ,  with  a  steady  and  an  even  hand,  the  balance  be- 
tiveen  state  and  federal  potver,  and  ice  trust  that  such 
may  continue  to  be  the  history  of  its  relation  to  that 
subject  so  long  as  it  shall  have  duties  to  perform  which 
demand  of  it  a  construction  of  the  Constitution,  or  of 
any  of  its  parts” 


(G)  Sixteenth  Amendment. 


By  Art.  1,  Sec.  8,  Congress  has  power  to  lay  and 
collect  taxes.  In  Art.  1,  Sec.  9,  however,  it  was  pro¬ 
vided  that  “no  capitation  or  other  direct  tax  shall  be 
laid,  unless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken.”  The  Sixteenth  Amend¬ 
ment  related  to  a  power  delegated  to  Congress  by  the  Con¬ 
stitution.  It  neither  increased  nor  diminished  that  power. 
It  simply  provided  for  a  more  just  and  equitable  exercise  of 
that  power.  In  so  far  as  this  Amendment  was  designed 
to  permit  a  better  method  in  the  exercise  of  a  delegated 
power,  it  may  be  said  to  be  the  correction  of  an  error  com¬ 
mitted  in  the  process.  The  Amendment  was  not  an  infringe¬ 
ment  upon  the  powers  of  the  States. 


(H)  Seventeenth  Amendment. 

This  Amendment  relating  to  the  election  of  United 
States  senators  by  the  people,  was  in  lieu  of  Par.  1, 
of  Sec.  3,  of  Art.  1,  and  in  lieu  of  so  much  of  Par. 
2  of  the  same  section  as  related  to  the  filling  of  vacancies. 
It  has  direct  references  to  articles  and  sections  in  the 
Constitution.  It  strictly  concerns  no  substantive  power  of 
either  Nation  or  State.  Its  theorv  is  to  substitute  a  better 
method  in  the  election  of  United  States  senators.  So  far  as 
this  change  was  regarded  as  an  improvement  in  the  selection 
of  senators  to  represent  a  State,  it  may  be  said  that  the 
Amendment  was  the  correction  of  an  error  committed  in 
the  process. 


1 1 8 


(10)  The  Amending  Function  is  Purely  Federal. 

The  Constitution  was  established  by  the  people  of  the 
United  States  for  their  own  government,  and  not  for  the 
government  of  the  individual  States.  The  powers  the  peo¬ 
ple  of  the  United  States  conferred  on  this  government  were 
to  be  exercised  by  the  government  itself.  All  the  instrumen¬ 
talities  for  exercising  powers  conferred  are  federal.  The 
power  to  amend  the  Constitution  is  a  federal  function.  It 
relates  to  the  Constitution  which  was  established  by  the 
people  of  the  United  States  for  their  own  government.  The 
power  to  amend  the  Constitution  was  provided  by  the  people 
of  the  United  States  as  a  means  of  correcting  errors  com¬ 
mitted  in  the  establishment  of  their  own  government. 

Mr.  Chief  Justice  Marshall,  in  McCulloch  v.  Maryland , 
4  Wheat.  31 G  (1819),  said: 

“No  trace  is  to  be  found  in  the  constitution  of  an 
intention  to  create  a  dependence  of  the  government  of 
the  Union  on  those  of  the  States,  for  the  execution  of 
the  great  powers  assigned  to  it.  Its  means  are  adequate 
to  its  ends ;  and  on  those  means  alone  was  it  expected  to 
rely  for  the  accomplishment  of  its  ends.  To  impose  on 
it  the  necessity  of  resorting  to  means  which  it  cannot 
control,  which  another  government  may  furnish  or  with¬ 
hold,  would  render  its  course  precarious,  the  result  of 
its  measures  uncertain,  and  create  a  dependence  on 
other  governments,  which  might  disappoint  its  most 
important  designs,  and  is  incompatible  with  the  lan¬ 
guage  of  the  constitution.” 

That  the  execution  of  any  power  or  the  carrying  out  of 
any  function  under  one  sovereign  government  should  be  de¬ 
pendent  in  any  way  upon  the  will  or  discretion  of  another 
sovereign  government,  or  that  one  sovereign  government 
under  the  guise  of  an  amendatory  provision  can  invade  and 
intermeddle  with  the  powers  and  jurisdiction  of  another 


sovereign  government  is  so  inconsistent  with  all  conceptions 
of  sovereignty  and  the  attributes  of  sovereignty  that  the 
mere  statement  of  either  proposition  should  be  a  sufficient  re¬ 
futation  of  it.  In  Barron  v.  The  Mayor  and  City  Council  of 
Baltimore ,  7  Pet.  243  (1833),  Mr.  Chief  Justice  Marshall 
observed : 

“The  Constitution  was  ordained  and  established  by 
the  people  of  the  United  States  for  themselves,  for  their 
own  government,  and  not  for  the  government  of  the 
individual  States.  Each  State  established  a  constitution 
for  itself,  and  in  that  constitution  provided  such  limita¬ 
tions  and  restrictions  on  the  powers  of  its  particular 
government  as  its  judgment  dictated.  The  people  of 
the  United  States  framed  such  a  government  for  the 
United  States  as  they  supposed  best  adapted  to  their 
situation,  and  best  calculated  to  promote  their  inter¬ 
ests.  The  powers  they  conferred  on  this  government 
were  to  be  exercised  by  itself.” 

Congress  in  proposing,  and  the  Legislatures  in  ratify¬ 
ing  an  amendment  to  the  Constitution,  are  federal  repre¬ 
sentatives.  They  derive  all  their  power  and  authority  from 
the  Constitution.  They  derive  no  power  from  the  laws  or 
constitutions  of  the  several  States.  Congress  and  the  Legis¬ 
latures  of  the  several  States  were  made  an  amending  branch 
of  the  Federal  Government  for  the  purposes  expressed  in 
Article  V,  and  like  other  branches  of  the  Federal  Govern¬ 
ment,  must  find  their  powers  within  the  Constitution.  They 
act  as  the  representatives  of  the  people  of  the  United  States. 
They  cannot  exceed  the  powers  of  their  principal,  the  people 
of  the  United  States.  The  Constitution  is  the  measure  of 
these  powers,  as  no  portion  of  sovereignty  resides  in  govern¬ 
ment. 

The  State  is  not  a  party  to  the  amendment  of  the  United 
States  Constitution.  The  sovereign  people  of  a  State  do 


120 


not  participate.  The  State,  as  a  body  politic,  takes  no  part. 
“A  State,  in  the  ordinary  sense  of  the  Constitution,  is  a 
political  community  of  free  citizens  occupying  a  territory 
of  defined  boundaries  and  organized  under  a  government 
sanctioned  and  limited  by  a  written  constitution,  and  estab¬ 
lished  by  the  consent  of  the  governed.”  Texas  v.  White , 
supra.  The  Legislature  of  a  State,  in  ratifying  an  amend¬ 
ment,  does  not  act  for  the  State,  and  cannot  relinquish  the 
sovereign  powers  of  the  State.  The  Legislature  is  a  creature 
and  not  the  creator  of  a  State  constitution.  The  members 
of  a  State  Legislature  have  official  powers,  but  they  do  not 
participate  in  sovereignty  in  any  other  capacity  than  as  citi¬ 
zens,  like  other  citizens  of  the  State.  A  State  is  bound  in 
respect  to  its  sovereign  powers  only  by  an  explicit  act  of 
the  whole  people.  If  the  sovereign  powers  of  a  State  reside 
in  the  people  of  the  State,  so  the  discretion  in  the  exercise 
of  those  powers  resides  in  the  people.  Congress  may  not 
constitutionally  propose,  therefore,  nor  may  the  Legisla¬ 
ture  of  a  State  constitutionally  ratify  any  proposition  as  an 
amendment  that  involves  the  exercise  or  the  relinquishment 
of  the  sovereign  powers  of  a  State.  The  people  of  a  State 
alone  are  competent  to  an  expression  of  sovereign  will. 

In  case  of  a  valid  amendment  the  consent  of  the  people 
of  the  United  States  is  implied  from  the  original  delegation 
of  powers  in  the  Federal  Constitution  and  as  an  incident  to 
them.  A  valid  amendment  requires  no  expression  of  the 
sovereign  will  of  the  people  of  the  United  States.  To  be 
valid,  an  amendment  must  have  such  relation  to  the  original 
grant  of  powers  and  to  the  scope  and  purposes  of  the  Consti¬ 
tution  as  will  carry  an  implication  of  assent  on  the  part  of 
the  people  of  the  United  States.  The  proposal  of  the  so- 
called  Amendment  in  the  present  case  has  no  relation  to  any 
of  the  expressed  or  implied  powers  in  the  Constitution,  and 


121 


its  subject  matter  is  entirely  without  the  jurisdiction  and 
powers  of  the  people  of  the  United  States.  The  implication 
of  assent  on  the  part  of  the  people  of  the  United  States  can¬ 
not  arise  when  the  power  involved  and  the  subject  matter 
dealt  with  are  entirely  beyond  their  sphere  of  action. 

In  discussing  the  provisions  of  Article  V  of  the  Consti¬ 
tution,  the  Supreme  Court  of  Maine,  in  delivering  an  ad¬ 
visory  opinion  on  the  question  of  a  referendum  upon  the 
so-called  Amendment,  said : 

“All  the  federal  amendments  which  have  thus  far 
been  adopted  have  been  proposed  in  compliance  with 
the  first  method ;  that  is,  by  a  joint  resolution  of  the  two 
Houses  of  Congress.  No  national  constitutional  conven¬ 
tion  has  ever  been  called  or  held.  Such  proposed  amend¬ 
ment  is  a  matter  within  the  sole  control  of  the  two 
houses,  and  is  independent  of  all  executive  action.  The 
signature  of  the  President  is  not  necessary,  and  it  need 
not  be  presented  to  him  for  approval  or  veto.  H oiling s- 
ivorth  v.  Virginia,  3  Dali.  378;  State  v.  Dahl,  6  N.  D.  81. 
Nor  is  Congress,  in  proposing  constitutional  amend¬ 
ments,  strictly  speaking,  acting  in  the  exercise  of  ordi¬ 
nary  legislative  power.  It  is  acting  in  behalf  of  and  as 
the  representative  of  the  people  of  the  United  States 
under  the  power  expressly  conferred  by  Article  V,  be¬ 
fore  quoted.  The  people,  through  their  Constitution, 
might  have  designated  some  other  body  than  the  two 
houses  or  a  national  constitutional  convention  as  the 
source  of  proposals.  They  might  have  given  such  power 
to  the  President,  or  to  the  Cabinet,  or  reserved  it  in 
themselves;  but  they  expressly  delegated  it  to  Congress 
or  to  a  constitutional  convention. 

“As  there  are  two  methods  of  proposal,  so  there 
are  two  methods  of  ratification.  Whether  an  amend¬ 
ment  is  proposed  by  joint  resolution  or  by  a  national 
constitutional  convention,  it  must  be  ratified  in  one  of 
two  ways : 


122 

“First,  by  the  Legislatures  of  three-fourths  of  the 
several  States ;  or, 

“Second,  by  constitutional  conventions  held  in 
three-fourtlis  thereof,  and  Congress  is  given  the  power 
to  prescribe  which  mode  of  ratification  shall  be  followed. 

“Hitherto  Congress  has  prescribed  only  the  former 
method,  and  all  amendments  heretofore  adopted  have 
been  ratified  solely  by  the  approving  action  of  the  Legis¬ 
lature  in  three-fourths  of  the  states.  That  is  the  mode 
of  ratification  prescribed  by  Congress  in  case  of  the 
amendment  now  under  consideration,  and  it  was  in  pur¬ 
suance  of  that  prescribed  mode  that  this  ratifying  re¬ 
solve  was  passed  by  the  Legislature  of  Maine. 

“Here,  again,  the  state  Legislature  in  ratifying  the 
amendment,  as  Congress  in  proposing  it,  is  not,  strictly 
speaking,  acting  in  the  discharge  of  legislative  duties 
and  functions  as  a  law-making  body,  but  is  acting  in 
behalf  of  and  as  representative  of  the  people  (of  the 
LTnited  States)*  as  a  ratifying  body,  under  the  power 
expressly  conferred  upon  it  by  Article  Y.  The  people 
(of  the  United  States)*  through  their  Constitution, 
might  have  clothed  the  Senate  alone,  or  the  House  alone, 
or  the  Governor’s  Council,  or  the  Governor,  with  the 
power  of  ratification,  or  might  have  reserved  that  power 
to  themselves  to  be  exercised  by  popular  vote.  But  they 
did  not.  They  (the  people  of  the  United  States)*  re¬ 
tained  no  power  of  ratification  in  themselves,  but  con¬ 
ferred  it  completely  upon  the  two  houses  of  the  Legis¬ 
lature;  that  is,  the  Legislative  Assembly.  * 

“It  admits  of  no  doubt  that  the  matter  of  amend¬ 
ment  which  is  governed  by  Article  Y,  the  people  (of  the 
LTnited  States)*  divested  themselves  of  all  authority  and 
conferred  the  power  of  proposal  upon  Congress  or  upon 
a  national  constitutional  convention,  and  the  power  of 
ratification  upon  the  state  Legislatures  or  upon  state 
constitutional  conventions.”  In  re  Opinion  of  Justices , 
107  Atl.  Hep.  673  (1919). 


*  Parentheses  ours. 


123 


In  Dodge  v.  Woolsey,  19  How.  348  (185G),  Mr.  Justice 
Wayne,  in  emphasizing  the  supremacy  of  the  Constitution, 
said : 

“It  is  supreme  over  the  people  of  the  United  States, 
aggregately  and  in  their  separate  sovereignties,  because 
they  (the  people  of  the  United  States)*  have  excluded 
themselves  from  any  direct  or  immediate  agency  in 
making  amendments  to  it,  and  have  directed  that 
amendments  should  be  made  representatively  for  them 
(the  people  of  the  United  States)*  by  the  Congress  of 
the  United  States,  when  two-thirds  of  both  houses  shall 
propose  them,  or  when  the  Legislatures  of  two-thirds 
of  the  several  states  shall  call  a  convention  for  pro¬ 
posing  amendments,  which,  in  either  case,  become  valid, 
to  all  intents  and  purposes,  as  a  part  of  the  Constitu¬ 
tion,  when  ratified  by  the  Legislatures  of  three-fourths 
of  them,  as  proposed  by  Congress.  *  *  *  Now, 

whether  such  a  supremacy  of  the  Constitution,  with  its 
limitations  in  the  particulars  just  mentioned,  and  with 
the  further  restriction  laid  by  the  people  ( of  the  United 
States)*  /upon  themselves,  and  for  themselves,  as  to  the 
modes  of  amendment,  be  right  or  wrong  politically,  no 
one  can  deny  that  the  Constitution  is  supreme,  as  has 
been  stated,  and  that  the  statement  is  in  exact  con¬ 
formity  with  it.” 

A  well  known  writer  on  Constitutional  Law,  after 
tracing  the  history  and  the  scope  of  Article  Y,  concludes  as 
follows : 

“Whether  an  amendment  is  proposed  by  Congress 
or  by  a  convention,  it  is  ratified  or  rejected  by  the  rep¬ 
resentatives  of  the  people  (of  the  United  States)*  either 
in  Legislature  or  in  convention,  and  not  by  the  people 
(of  the  United  States)*  voting  on  it  directly.  The  peo¬ 
ple  (of  the  United  States)*  have  no  direct  power  either 
to  propose  an  amendment  or  to  ratify  it  after  it  is  pro¬ 
posed  and  submitted.”  Watson,  Const.,  Yol.  2,  p.  1310. 


*  Parentheses  ours. 


124 


(11)  The  Proposal  of  the  So-called  Eighteenth  Amend¬ 
ment  Was  Unconstitutional. 

The  practice  of  Congress  in  proposing  Amendments  has 
been  uniform  since  the  Constitution  was  adopted  and 
clearly  indicates  that  Congress  in  proposing  and  the  Legis¬ 
latures  in  ratifying  an  Amendment  are  federal  representa¬ 
tives  designated  for  the  performance  of  a  federal  function. 
Heretofore,  in  every  instance  Congress  has  proposed  Amend¬ 
ments  to  the  Legislatures  of  the  several  States.  In  the  case 
of  the  so-called  Eighteenth  Amendment  Congress  has  for  the 
first  time  in  one  hundred  and  thirty  years  submitted  the 
proposal  of  Amendment  to  the  States. 

The  different  course  which  was  pursued  in  this  instance 
was  adopted  understanding^  and  with  a  purpose.  It  was 
necessary  to  depart  from  the  practice  which  had  always 
heretofore  obtained,  in  order  to  carry  out  the  new  constitu¬ 
tional  doctrine,  that  the  word  “amendment”  in  Article  V 
includes  proposals  covering  the  whole  field  of  absolute  sov¬ 
ereignty.  In  the  proposal  of  the  so-called  Amendment, 
neither  a  power  nor  a  subject  matter  within  the  scope  of  the 
Federal  Constitution  was  dealt  with.  On  the  contrarv,  the 
power  involved  resided  in  the  sovereign  people  of  the  respec¬ 
tive  States,  and  in  them  exclusively.  It  was  necessary, 
therefore,  in  order  to  obtain  a  surrender  of  such  power  to 
propose  the  so-called  Amendment  to  those  who  possessed  it. 
Recognizing  this  necessity,  Congress  made  the  proposal  of 
the  so-called  Amendment  to  the  respective  States ,  that  is,  to 
the  sovereign  people  of  the  respective  States.  Such  a  sub¬ 
mission  of  the  proposal  to  the  States  is  nowhere  recognized 
by  the  Federal  Constitution  and  is  a  revolutionary  proceed¬ 
ing.  The  course  which  has  hitherto  been  pursued  in  refer¬ 
ence  to  the  submission  of  Amendments  to  the  Legislatures 


125 


of  the  several  States  is  clearly  indicated  by  the  joint  resolu¬ 
tions  adopted  by  Congress  submitting  prior  Amendments. 

(a)  Twelve  Amendments  were  submitted  to  the  Legis¬ 
latures  of  the  several  States  by  a  joint  resolution  of  Con¬ 
gress,  passed  on  the  25th  of  September,  1789,  at  the  first 
session  of  the  First  Congress.  Ten  of  these  were  ratified  by 
the  Legislatures,  and  became  the  first  ten  Amendments  to 
the  Constitution.  The  joint  resolution  of  Congress  was  in 
the  following  form : 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America,  in  Congress 
assembled,  two-thirds  of  both  Houses  concurring,  that 
the  following  Articles  be  proposed  to  the  Legislatures  of 
the  several  States,  as  Amendments  to  the  Constitution 
of  the  United  States,  all  or  any  of  which  Articles,  when 
ratified  by  three-fourths  of  the  said  Legislatures,  to  be 
valid  to  all  intents  and  purposes,  as  part  of  the  said 
Constitution;  viz:”  (First  Ten  Amendments.)  Doc. 
His.  of  Const.,  Vol.  2,  p.  321. 

(b)  The  Eleventh  Amendment  was  submitted  to  the 
Legislatures  of  the  several  States  by  a  joint  resolution  of 
Congress,  passed  on  the  5th  of  March,  1794,  at  the  first 
session  of  the  Third  Congress,  in  the  form  following : 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America,  in  Congress 
assembled,  two-thirds  of  both  Houses  concurring,  that 
the  following  Article  be  proposed  to  the  Legislatures  of 
the  several  States,  as  an  Amendment  to  the  Constitu¬ 
tion  of  the  United  States ;  which  when  ratified  by  three- 
fourths  of  the  said  Legislatures  shall  be  valid  as  part  of 
the  said  Constitution,  viz ( Eleventh  Amendment. ) 
Doc.  His.  of  Const.,  Vol.  2,  p.  391. 

(c)  The  Twelfth  Amendment  was  submitted  to  the 
Legislatures  of  the  several  States  by  a  joint  resolution  of 


126 


Congress,  passed  on  the  12tli  of  December,  1803,  at  the  first 
session  of  the  Eighth  Congress.  That  the  proposal  was  to 
the  Legislatures  is  inferred  and  not  expressed. 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America,  in  Congress 
assembled,  two-thirds  of  both  Houses  concurring,  that 
in  lieu  of  the  third  paragraph  of  the  first  section  of  the 
second  article  of  the  Constitution  of  the  United  States, 
the  following  be  proposed  as  an  Amendment  to  the  Con¬ 
stitution  of  the  United  States,  which  when  ratified  by 
three-fourths  of  the  Legislatures  of  the  several  States, 
shall  be  valid  to  all  intents  and  purposes,  as  part  of  the 
said  Constitution,  to  wit ( Twelfth  Amendment. ) 
Doc.  His.  of  Const.,  Yol.  2,  p.  408. 

(d)  An  amendment  relating  to  Titles  of  Nobility  was 
submitted  to  the  Legislatures  of  the  several  States  by  a  joint 
resolution  of  Congress,  at  the  second  session  of  the  Eleventh 
Congress,  begun  and  held  at  Washington  on  the  27th  of 
November,  1809.  This  proposed  amendment  was  not  rati¬ 
fied.  The  form  of  its  submission,  however,  is  material. 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America,  in  Congress 
assembled,  two-thirds  of  both  Houses  concurring,  that 
the  following  section  be  submitted  to  the  Legislatures 
of  the  several  States,  which  when  ratified  by  the  Legisla¬ 
tures  of  three-fourths  of  the  States,  shall  be  valid  and 
binding,  as  a  part  of  the  Constitution  of  the  United 
States,  viz:”  (Titles  of  Nobility.)  Doc.  His.  of  Const., 
Vol.  2,  p.  452. 

(e)  An  amendment  forbidding  Congress  to  interfere 
with  the  domestic  institutions  of  the  States  was  submitted 
to  the  Legislatures  of  the  several  States  by  a  joint  resolu¬ 
tion  of  Congress  at  the  second  session  of  the  Thirty-sixth 
Congress,  begun  and  held  at  Washington  on  the  3rd  of 


127 


December,  1860.  This  proposal  of  amendment  was  not  rati¬ 
fied. 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America,  in  Congress 
assembled,  that  the  following  article  be  proposed  to  the 
Legislatures  of  the  several  States  as  an  Amendment  to 
the  Constitution  of  the  United  States,  which,  when  rati¬ 
fied  by  three-fourths  of  said  Legislatures,  shall  be  valid, 
to  all  intents  and  purposes,  as  part  of  the  said  Constitu¬ 
tion,  viz:”  (Domestic  Institutions.)  Doc.  His.  of  Const., 
Vol.  2,  p.  516. 

(f)  The  Thirteenth  Amendment  was  submitted  to  the 
Legislatures  of  the  several  States  by  a  joint  resolution  of 
Congress,  passed  on  the  1st  of  February,  1865,  at  the  second 
session  of  the  Thirty-eighth  Congress.  The  resolution  read 
in  part  as  follows : 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America  in  Congress 
assembled,  (two-thirds  of  both  Houses  concurring), 
That  the  following  article  be  proposed  to  the  Legisla¬ 
tures  of  the  several  States  as  an  Amendment  to  the  Con¬ 
stitution  of  the  United  States,  which,  when  ratified  by 
three-fourths  of  said  Legislatures,  shall  be  valid,  to  all 
intents  and  purposes,  as  a  part  of  the  said  Constitution, 
namely:”  (Thirteenth  Amendment.)  Doc.  His.  of 
Const.,  Vol.  2,  p.  520. 

(g)  The  Fourteenth  Amendment  was  submitted  to  the 
Legislatures  of  the  several  States  by  a  joint  resolution  of 
Congress,  passed  on  the  16th  of  June,  1866,  at  the  first  ses¬ 
sion  of  the  Thirty-ninth  Congress.  The  customary  form  was 
followed : 

“Be  it  Resolved  by  the  Senate  and  House  of  Rep¬ 
resentatives  of  the  United  States  of  America  in  Con¬ 
gress  assembled,  (two-thirds  of  both  Houses  con- 


128 


curring),  That  the  following  article  be  proposed  to  the 
Legislatures  of  the  several  States  as  an  Amendment  to 
the  Constitution  of  the  United  States,  which,  when  rati¬ 
fied  by  three-fourths  of  said  Legislatures,  shall  be  valid 
as  part  of  the  Constitution,  namely :”  (Fourteenth 
Amendment.)  Doc.  His.  of  Const.,  Vol.  2,  p.  638. 

(h)  The  Fifteenth  Amendment  was  submitted  to  the 
Legislatures  of  the  several  States  by  a  joint  resolution  of 
Congress,  passed  on  the  27th  of  February,  1869,  at  the  third 
session  of  the  Fortieth  Congress.  Form  of  the  resolution 
follows : 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America  in  Congress 
assembled,  (two-thirds  of  both  Houses  concurring), 
That  the  following  article  be  proposed  to  the  Legisla¬ 
tures  of  the  several  States  as  an  Amendment  to  the  Con¬ 
stitution  of  the  United  States,  which,  when  ratified  by 
three-fourths  of  said  Legislatures  shall  be  valid  as  part 
of  the  Constitution,  namely:”  (Fifteenth  Amendment.) 
Doc.  His.  of  Const.,  Vol.  2,  p.  795. 

(i)  The  Sixteenth  Amendment  was  submitted  to  the 
Legislatures  of  the  several  States  by  a  joint  resolution  of 
Congress,  at  the  first  session  of  the  Sixty-first  Congress.  In 
this  resolution  it  is  inferred  and  not  expressed  that  the  pro¬ 
posal  was  to  the  Legislatures  of  the  several  States : 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America  in  Congress 
assembled,  (two-thirds  of  each  House  concurring 
therein)  that  the  following  Article  is  proposed  as  an 
Amendment  to  the  Constitution  of  the  United  States, 
which,  when  ratified  by  the  Legislatures  of  three-fourths 
of  the  several  States,  shall  be  valid  to  all  intents  and 
purposes  as  a  part  of  the  Constitution:”  (Sixteenth 
Amendment. ) 


129 


(j)  The  Seventeenth  Amendment  was  submitted  to  the 
Legislatures  of  the  several  States  by  a  joint  resolution  of 
Congress  at  the  second  session  of  the  Sixty-second  Congress. 
Again  the  submission  to  the  Legislatures  is  inferred  and  not 
expressed : 

“Resolved  by  the  Senate  and  House  of  Representa¬ 
tives  of  the  United  States  of  America  in  Congress 
assembled  (two-thirds  of  each  House  concurring 
therein),  that  in  lieu  of  the  first  paragraph  of  section 
three  of  article  one  of  the  Constitution  of  the  United 
States,  and  in  lieu  of  so  much  of  paragraph  two  of  the 
same  section  as  relates  to  the  filling  of  vacancies,  the 
following  be  proposed  as  an  Amendment  to  the  Con¬ 
stitution,  which  shall  be  valid  to  all  intents  and  pur¬ 
poses  as  part  of  the  Constitution  when  ratified  by  the 
Legislatures  of  three-fourths  of  the  States.”  (Seven¬ 
teenth  Amendment.) 

(k)  The  so-called  Eighteenth  Amendment  was  sub¬ 
mitted  to  the  States  by  a  joint  resolution  of  Congress,  passed 
on  December  18tli,  1917,  at  the  second  session  of  the  Sixty- 
fifth  Congress.  This  is  the  first  proposal  of  Amendment  ever 
submitted  to  the  States.  The  material  portion  of  the  resolu¬ 
tion  reads  as  follows : 

“Resolved  by  the  Senate  and  House  of  Representa- 
itves  of  the  United  States  of  America  in  Congress 
assembled  (two-thirds  of  each  House  concurring 
therein),  that  the  following  Amendment  to  the  Consti¬ 
tution  be,  and  hereby  is,  proposed  to  the  States ,  to 
become  valid  as  a  part  of  the  Constitution  when  ratified 
by  the  Legislatures  of  the  several  States  as  provided  by 
the  Constitution.”  ( So-called  Eighteenth  Amendment. ) 

There  can  be  no  mistake  as  to  the  intent  of  the  pro¬ 
ponents  of  this  so-called  Amendment  to  submit  it  to  the 
States ,  for  their  avowed  purpose  is  to  create  a  new  agree¬ 
ment,  a  new  relationship  between  the  people  of  the  United 


130 

States  and  the  people  of  the  respective  States.  To  make 
that  new  relationship  binding  the  people  of  the  respective 
States  must  be  made  parties  to  it,  and  must  be  drawn  in 
through  the  form  of  submitting  the  proposal  to  them.  As  an 
inducement  to  enter  this  new  relationship  the  people  of  the 
respective  States  are  promised  “concurrent  power.”  In  the 
third  paragraph  of  the  so-called  Amendment  it  is  reiterated 
that  the  submission  is  “to  the  States  by  the  Congress  ”  The 
entire  procedure  is  revolutionary  and  without  constitutional 
sanction.  It  surpasses  all  understanding  that  Congress 
while  submitting  the  proposal  to  the  States  declares  that 
their  Legislatures  shall  bind  them.  When  pray  did  Con¬ 
gress  become  the  dictator  over  the  sovereign  people  of  a  State 
with  respect  to  their  sovereign  powers?  Sovereignty  resides 
in  the  people  and  they  alone  may  express  sovereign  will. 

(12)  The  Preservation  of  the  States. 

Sovereignty  is  the  right  to  govern.  All  sovereignty  in 
the  last  analysis  resides  in  the  people,  but  in  our  dual  sys¬ 
tem  of  government  sovereignty  is  divided.  A  portion  of 
sovereignty  resides  in  the  people  of  the  United  States  and 
all  the  residuum  is  retained  by  the  people  of  the  respective 
States.  The  sovereignty  of  a  State  is  original  and  is  inde¬ 
pendent  of  the  Federal  Constitution.  In  the  exercise  of 
their  original  sovereignty  the  people  of  a  State  have  an 
inherent  right  to  establish  their  form  of  government  upon 
such  principles  as  shall  most  conduce  to  their  own  happi¬ 
ness.  This  is  the  basis  upon  which  the  whole  American 
fabric  has  been  erected.  The  principles  upon  which  the 
people  of  a  State  erect  their  government  are  deemed  to  be 
fundamental  and  are  designed  to  be  permanent.  In  the  Con¬ 
stitution  of  Rhode  Island  it  is  declared  in  the  words  of 


Washington  in  his  Farewell  Address:  “The  basis  of  our 
political  system  is  the  right  of  the  people  to  make  and  alter 
their  constitutions  of  government;  but  that  the  constitution 
which  at  any  time  exists,  till  changed  by  an  explicit  and 
authentic  act  of  the  whole  people,  is  sacredly  obligatory 
upon  all.”  R.  I.  Const.,  Art.  1,  Sec.  1. 

“The  people  of  the  State  created,  the  people  of  the 
State  only  can  change,  its  Constitution.”  Mr.  Justice 
Iredell,  in  Chisholm  v.  Georgia,  supra. 

“The  people  made  the  constitution,  and  the  people 
can  unmake  it.  It  is  the  creature  of  their  will,  and 
lives  only  by  their  will.  But  this  supreme  and  irre¬ 
sistible  power  to  make  or  unmake,  resides  only  in  the 
whole  body  of  the  people;  not  in  any  sub-division  of 
them.  The  attempt  of  any  of  the  parts  to  exercise  it  is 
usurpation,  and  ought  to  be  repelled  by  those  to  whom 
the  people  have  delegated  their  power  of  repelling  it.” 
Mr.  Chief  Justice  Marshall,  in  Cohens  v.  Virginia,  supra. 

The  power  of  the  people  of  the  United  States  to  amend 

their  Constitution  is  undoubted,  and  the  power  of  the  people 

of  a  State  to  amend  their  constitution  is  equally  clear.  In 

the  case  of  the  so-called  Eighteenth  Amendment,  however, 

the  representatives  of  the  people  of  the  United  States  have 

gone  beyond  their  jurisdiction  and  their  powers  and  have 

attempted  to  amend  not  the  Constitution  of  the  United 

States  but  the  constitution  of  everv  State  in  the  Union.  If 

the  amending  function  is  construed  as  coextensive  with 

absolute  sovereignty,  then  the  basis  of  our  political  system 

is  no  longer  the  right  of  the  people  of  a  State  to  make  and 

alter  their  constitution,  for  their  political  institutions  are 

% 

at  the  mercy  of  others  and  may  be  changed  against  their 
will.  “It  would  be  a  novel  and  dangerous  doctrine,”  said  Mr. 
Madison,  “that  a  Legislature  could  change  the  Constitution 


132 


under  wliich  it  held  its  existence.”  Farrand ,  Yol.  2,  p.  92. 
If  officials  may  abrogate  or  fundamentally  alter  the  form  of 
government  in  State  and  Nation,  to  what  end  is  it  provided 
that  Senators  and  Representatives  in  Congress  shall  be 
bound  by  oath  or  affirmation  to  support  this  Constitution 
and  that  each  Senator  and  Representative  in  a  State  Legis¬ 
lature  shall  be  equally  bound  by  oath  or  affirmation  to  sup¬ 
port  the  constitution  of  his  State? 

The  preservation  of  the  State  governments,  by  protect¬ 
ing  them  against  encroachment  by  the  Federal  Government, 
may  be  said  to  have  been  the  chief  concern  of  all  the  patriots 
who  had  any  part  either  in  the  framing  or  the  adoption  of 
the  Constitution.  Their  declarations  of  this  purpose  are 
without  number  and  quotations  may  seem  unnecessary. 
These  few,  however,  will  illustrate  the  spirit  of  all. 

Mr.  Iredell,  (N.  C.)  :  “I  heartily  agree  with  the 
gentleman,  that,  if  anything  in  this  Constitution  tended 
to  annihilation  of  the  state  government,  instead  of  excit¬ 
ing  the  admiration  of  any  man,  it  ought  to  excite  the 
resentment  and  execration.  No  such  wicked  intention 
ought  to  be  suffered.  But  the  gentlemen  who  formed 
the  Constitution  had  no  such  object;  nor  do  I  think 
there  is  the  least  ground  for  that  jealousy.  The  very 
existence  of  the  general  government  depends  on  that  of 
the  state  governments.”  El.  Deb.,  Yol.  4,  p.  53. 

Mr.  Hamilton,  (N.  Y. )  :  “The  state  governments 
are  essentially  necessary  to  the  form  and  spirit  of  the 
general  system.  As  long,  therefore,  as  Congress  have 
a  full  conviction  of  this  necessity,  they  must,  even  upon 
principles  purely  national,  have  as  firm  an  attachment 
to  the  one  as  to  the  other.  This  conviction  can  never 
leave  them,  unless  they  become  madmen.  While  the 
Constitution  continues  to  be  read,  and  its  principles 
known ,  the  states  must,  by  every  rational  man,  be  con¬ 
sidered  as  essential,  component  parts  of  the  Union;  and 
therefore  the  idea  of  sacrificing  the  former  to  the  latter 


133 


is  wholly  inadmissible.  *  *  *  The  gentlemen  are 

afraid  that  the  state  governments  will  be  abolished. 
But,  sir,  their  existence  does  not  depend  upon  the  laws 
of  the  United  States.  Congress  can  no  more  abolish  the 
state  governments ,  than  they  can  dissolve  the  Union. 
The  whole  Constitution  is  repugnant  to  it .”  El.  Deb., 
Vol.  2,  pp.  304,  309. 

Mr.  Davie,  (N.  C.)  :  “Mr.  Chairman,  a  consolida¬ 
tion  of  the  states  is  said  by  some  gentlemen  to  have  been 
intended.  *  *  *  If  there  were  any  seeds  in  this 

Constitution  ichich  might ,  one  day,  produce  a  consoli¬ 
dation,  it  would,  sir,  witln  me,  be  an  insuperable  object- 
tion,  I  am  so  perfectly  convinced  that  so  extensive  a 
country  as  this  can  never  be  managed  by  one  consoli¬ 
dated  government.  The  Federal  Convention  were  as 
well  convinced  as  the  members  of  this  house,  that  the 
state  governments  were  absolutely  necessary  to  the 
.  existence  of  the  federal  government.”  El.  Deb.,  Vol.  4, 
p.  58. 

We  assert  that  Congress  in  proposing  and  the  Legisla¬ 
tures  of  the  several  States  in  ratifying  the  so-called  Amend¬ 
ment  have  gone  beyond  their  jurisdiction  and  their  powers. 
The  limitations  of  territorial  jurisdiction  are  readily  recog¬ 
nized  ;  but  the  limitations  of  jurisdiction  which  are  measured 
by  delegated  powers  are  not  so  easily  discernible.  “Were 
any  one  State  of  the  Union  to  pass  a  law  for  trying  a 
criminal  in  a  Court  not  created  by  itself,  in  a  place  not 
within  its  jurisdiction,  and  direct  the  sentence  to  be  executed 
without  its  territory,  we  should  all  perceive  and  acknowl¬ 
edge  its  incompetency  to  such  a  course  of  legislation.” 
Cohens  v.  Virginia,  supra.  The  Federal  Government  has  no 
territorial  jurisdiction  within  the  boundaries  of  the  State 
of  Rhode  Island,  nor  within  the  boundaries  of  anv  State  of 
the  Union.  The  operation  of  its  powers  within  the  limits 
of  States  is  confined  strictly  to  the  powers  delegated. 


134 


Beyond  the  powers  delegated  it  is  powerless  and  can  assume 
no  jurisdiction.  In  Ableman  v.  Booth ,  supra ,  the  Supreme 
Court  of  the  State  of  Wisconsin  upon  habeas  corpus  proceed¬ 
ings  released  the  defendant,  who  was  in  the  custody  of  a 
United  States  marshal  under  process  from  the  Federal 
court.  Mr.  Chief  Justice  Taney  observed  with  reference  to 
jurisdiction : 

“This  right  to  inquire  by  process  of  habeas  corpus, 
and  the  duty  of  the  officer  to  make  a  return,  grows, 
necessarily,  out  of  the  complex  character  of  our  Gov¬ 
ernment,  and  the  existence  of  two  distinct  and  separate 
sovereignties  within  the  same  territorial  space,  each  of 
them  restricted  in  its  powers,  and  each  within  its  sphere 
of  action,  prescribed  by  the  Constitution  of  the  United 
States,  independent  of  the  other.  But,  after  the  return 
is  made ,  and  the  State  judge  or  court  judicially 
apprized  that  the  party  is  in  custody  under  the  authority 
of  the  United  States ,  they  can  proceed  no  further.  They 
then  know  that  the  prisoner  is  within  the  dominion  and 
jurisdiction  of  another  Government,  and  that  neither 
the  writ  of  habeas  corpus,  nor  any  other  process  issued 
under  the  State  authority,  can  pass  over  the  line  of 
division  between  the  two  sovereignties.  He  is  then 
within  the  dominion  and  exclusive  jurisdiction  of  the 
United  States.” 

So  in  the  present  case  upon  the  first  presentation  of  the 
proposal  of  the  so-called  Amendment  Congress  should  have 
recognized  that  both  the  power  involved  and  the  subject 
matter  dealt  with  in  the  Amendment  was  wholly  within 
the  dominion  and  jurisdiction  of  the  States,  and  that  they 
were  powerless  to  pass  over  the  line  of  division  which  sepa¬ 
rates  the  Federal  from  State  jurisdiction.  The  proposal  was 
void  ab  initio. 

The  power  of  police  is  an  attribute  of  State  sovereignty. 

It  resides  in  the  States  exclusivelv  and  is  necessarv  to  their 

«/  •/ 


i35 


existence  as  organized  governments.  There  is  no  divided 
authority,  either  in  respect  to  its  possession  or  in  respect 
to  its  exercise.  The  Federal  Government  has  no  police 
power.  Each  State  is  supreme  in  the  possession  and  in  the 
exercise  of  the  power  within  its  territorial  limits.  “That 
there  is  a  plain  repugnance  in  conferring  upon  one  govern¬ 
ment  a  power  to  control  the  constitutional  measures  of 
another,  which  other,  with  respect  to  those  very  measures, 
is  declared  to  be  supreme  over  that  which  asserts  the  control, 
is  a  proposition  not  to  be  denied.”  McCulloch  v.  Maryland, 
supra.  Even  where  the  Federal  Government  and  a  State 
government  possess  a  similar  power,  as  in  the  case  of  the 
power  to  tax,  a  necessary  implication  will  be  raised  to  pre¬ 
vent  either  the  Federal  Government  or  a  State  government 
from  impairing  the  existence  and  efficiency  of  the  other.  In 
McCulloch  v.  Maryland,  supra ,  such  an  implication  was 
raised  to  protect  the  Federal  Government;  and  in  Collector 
v.  Day ,  supra,  such  an  implication  was  raised  to  protect  a 
State.  In  the  latter  case,  Mr.  Justice  Nelson  based  his 
opinion  upon  the  great  law  of  self-preservation. 

“In  this  respect ,  that  is,  in  respect  to  the  reserved 
powers,  the  State  is  as  sovereign  and  independent  as  the 
general  government.  And  if  the  means  and  instrumen¬ 
talities  employed  by  that  Government  to  carry  into 
operation  the  powers  granted  to  it  are,  necessarily,  and, 
for  the  sake  of  self-preservation,  exempt  from  taxation 
by  the  States,  why  are  not  those  of  the  States  depending 
upon  their  reserved  powers,  for  like  reasons,  equally 
exempt  from  Federal  taxation?  Their  unimpaired 
existence  in  the  one  case  is  as  essential  as  in  the  other. 
It  is  admitted  that  there  is  no  express  provision  in  the 
Constitution  that  prohibits  the  general  government  from 
taxing  the  means  and  instrumentalities  of  the  States, 
nor  is  there  any  prohibiting  the  States  from  taxing  the 
means  and  instrumentalities  of  that  government.  In 


136 


both  cases  the  exemption  rests  upon  necessary  implica¬ 
tion,  and  is  upheld  by  the  great  late  of  self-preservation ; 
as  any  government ,  whose  means  employed  in  conduct¬ 
ing  its  operations ,  if  subject  to  the  control  of  another 
and  distinct  government ,  can  exist  only  at  the  mercy 
of  that  government  ” 

In  McCulloch  v.  Maryland ,  supra ,  Mr.  Chief  Justice 
Marshall  said  that  if  we  measure  a  power  residing  in  a  State 
by  the  extent  of  sovereignty  which  the  people  of  a  single 
State  possess,  and  can  confer  on  its  government,  we  have 
an  intelligible  standard,  applicable  to  every  case  to  which 
the  power  may  be  applied.  Then  said  he: 

“We  have  a  principle  which  is  safe  for  the  States, 
and  safe  for  the  Union.  We  are  relieved,  as  we  ought 
to  be,  from  .clashing  sovereignty;  from  interfering 
powers ;  from  a  repugnancy  between  a  right  in  one  gov¬ 
ernment  to  pull  down,  what  there  is  an  acknowledged 
right  in  another  to  build  up;  from  the  incompatibility 
of  a  right  in  one  government  to  destroy,  what  there  is 
a  right  in  another  to  preserve.” 

If  a  power  admittedly  delegated  to  the  Federal  Govern¬ 
ment  under  the  Constitution  may  be  restrained  by  necessary 
implication  because  it  tends  to  impair  or  destroy  the  exist¬ 
ence  of  a  State,  and  this  implication  arises  by  virtue  of  the 
great  law  of  self-preservation  how  much  more  reason  is  there 
in  construing  the  Constitution  to  exclude  a  principle  of 
perpetual  conflict  that  directly  tends  to  the  destruction  of 
the  States?  If  the  police  power  residing  in  a  State  is  to 
be  measured  by  the  extent  of  sovereignty  which  the  people 
of  a  State  possess  with  reference  to  it,  then  the  measure 
of  that  power  is  full  and  complete.  That  a  State  is  exclu¬ 
sively  sovereign  with  respect  to  a  power  and  at  the  same 
time  may  be  deprived  of  that  power  against  its  will  is  utterly 
repugnant  to  all  conceptions  of  sovereignty  and  to  the  spirit 


137 


of  the  Constitution.  “That  is  a  very  narrow  view  of  the 
Constitution,”  said  Mr.  Justice  Wayne  in  the  Passenger 
Cases,  supra ,  “which  supposes  that  any  political  sovereign 
right  given  by  it  can  be  exercised,  or  was  meant  to  be  used 
by  the  United  States  in  such  a  way  as  to  dissolve  or  even 
disquiet  the  fundamental  organization  of  either  of  the 
States.” 

In  Hammer  v.  Dagenhart,  247  U.  S.  251  (1917),  Mr. 
Justice  Day,  speaking  for  the  Court,  observed : 

“The  maintenance  of  the  authority  of  the  States 
over  matters  purely  local  is  as  essential  to  the  preserva¬ 
tion  of  our  institutions  as  is  the  conservation  of  the 
supremacy  of  the  federal  power  in  all  matters  intrusted 
to  the  Nation  by  the  Federal  Constitution.  *  *  * 

This  court  has  no  more  important  function  than  that 
which  devolves  upon  it  the  obligation  to  preserve  invio¬ 
late  the  constitutional  limitations  upon  the  exercise  of 
authority,  Federal  and  State,  to  the  end  that  each  may 
continue  to  discharge,  harmoniously  with  the  other,  the 
duties  intrusted  to  it  by  the  Constitution.” 

In  Texas  v.  White,  7  Wall.  700,  725  (1868),  Mr.  Chief 
Justice  Chase  wrote  that  memorable  passage  that  should 
be  our  guidance  for  all  time : 

uBut  the  perpetuity  and  indissolubility  of  the 
Union  by  no  means  implies  the  loss  of  distinct  and  indi¬ 
vidual  existence,  or  of  the  right  of  self  government  by 
the  States .  Under  the  Articles  of  Confederation  each 
State  retained  its  sovereignty,  freedom  and  inde¬ 
pendence,  and  every  power,  jurisdiction  and  right  not 
expressly  delegated  to  the  United  States.  Under  the 
Constitution,  though  the  powers  of  the  States  were 
much  restricted,  still,  all  powers  not  delegated  to  the 
United  States,  nor  prohibited  to  the  States,  are  reserved 
to  the  States  respectively  or  to  the  people.  And  we 
have  already  had  occasion  to  remark  at  this  term,  that 


‘the  people  of  each  State  compose  a  State,  having  its 
own  government,  and  endowed  with  all  the  functions 
essential  to  separate  and  independent  existence/  and 
that  ‘without  the  States  in  union,  there  could  be  no 
such  political  body  as  the  United  States.’  Lane  Co.  v. 
Oregon.  Not  only,  therefore,  can  there  be  no  loss  of 
separate  and  independent  autonomy  to  the  States, 
through  their  union  under  the  Constitution,  but  it  may 
be  not  unreasonably  said  that  the  preservation  of  the 
States,  and  the  maintenance  of  their  governments,  are 
as  much  within  the  design  and  care  of  the  Constitution 
as  the  preservation  of  the  Union  and  the  maintenance 
of  the  National  Government.  The  Constitution ,  in  all 
its  provisions,  looks  to  an  indestructible  Union,  com¬ 
posed  of  indestructible  States  .” 

And  Mr.  Justice  Brewer,  in  Keller  v.  United  States,  213 
U.  S.  138  (1908),  thus  emphasized  the  statement  of  Mr. 
Chief  Justice  Chase: 

“We  should  never  forget  the  declaration  in  Texas 
v.  White,  7  Wall.  100,  725,  that  (tlie  Constitution  in  all 
its  provisions,  looks  to  an  indestructible  Union,  com¬ 
posed  of  indestructible  states.’” 

The  State  of  Rhode  Island  respectfully  submits  that  the 
motion  to  dismiss  its  bill  should  be  denied  and  that  its  prayer 
for  relief  should  be  granted. 

Herbert  A.  Rice 

Attorney  General 

A.  A.  Capotosto 

Assista7it  Att’y  Gen’l 


